Nicol v Macquarie University

[2018] NSWSC 530

Supreme Court

New South Wales

Medium Neutral Citation:

Nicol v Macquarie University [2018] NSWSC 530

Hearing dates:

5 October 2017

Date of orders:

27 April 2018

Decision date:

27 April 2018

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court declares that:

 

(1) The decision of the Appeal Panel in matter number 2738/17 made on 26 May 2017 is vitiated by jurisdictional error.

 

The Court makes an order:

 

(2) In the nature of certiorari removing into the Court the decision of the Appeal Panel in matter number made on 26 May 2017 and quashing that decision.

 

The Court further orders that:

 

(3) Matter number 2738/17 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law.

 (4) The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW - Judicial Review - Workplace Injury Management and Workers Compensation Act 1998 (NSW) - Review Panel Assessment – whether denial of procedural fairness - whether Review Panel failed to exercise jurisdiction – whether Appeal Panel misapplied the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment in Respect of Apportionment

Legislation Cited:

Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290
Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264
Campbelltown City Council v Vegan & Ors [2004] NSWSC 1129
Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; 67 NSWLR 372
Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 839
Ferguson v State of New South Wales & Ors [2017] NSWSC 887
Frost v Kourouche [2014] NSWCA 39
Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396
HG v The Queen [1999] HCA; 197 CLR 414; 160 ALR 554; 73 ALJR 281
Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mercy Centre Lavington v Kiely [2017] NSWSC 1234
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Roger v De Gelder [2015] NSWCA 211
Schofield v Abigroup Limited [2016] NSWSC 954
Wingfoot Australia Partners Pty Ltd & Anor v Kocak [2013] HCA 43; 252 CLR 480; 303 ALR 64

Texts Cited:

NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth Edition, 1 April 2016)

Category:

Principal judgment

Parties:

Gregory William Nicol ( Plaintiff)
Macquarie University (First Defendant)
Workers Compensation Commission of NSW (Second Defendant)
The Medical Appeal Panel of the Workers compensation Commission of NSW constituted by Arbitrator John Wynyard and Approved Medical Specialists Robert Gertler and Brian Parsonage (Third Defendant)

Representation:

Counsel:
EG Romaniuk SC with EE Grotte (Plaintiff)
H Halligan (First Defendant)

  Solicitors:
Walker Law Group (Plaintiff)
Hicksons Lawyers (First Defendant)
Submitting Appearances (Second and Third Defendants)

File Number(s):

2017/227699

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review from a decision of the Medical Appeal Panel of the Workers Compensation Commission of NSW.

2. The plaintiff is Gregory William Nicol. (Mr Nicol). The first defendant is Macquarie University. The second defendant is the Workers Compensation Commission of NSW. The third defendant is the Medical Appeal Panel of the Workers Compensation Commission of NSW constituted by Arbitrator John Wynyard and Approved Medical Specialists Robert Gertler and Brian Parsonage. (the Appeal Panel). The plaintiff relied upon the affidavit of his solicitor Stephen James Walker dated 14 September 2017 and his court book. The first defendant relied upon the affidavit of Casey Bray dated 28 September 2017 and its court books volumes (2).

3. By summons filed 26 July 2017, Mr Nicol seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision of the Appeal Panel issued by the Workers Compensation Commission of NSW on 26 May 2017 is void and of no effect; and secondly, an order setting aside the decision and the statement of reasons for decision of the Appeal Panel dated 26 May 2017.

Background

4. In January 2005, Mr Nicol commenced employment with Macquarie University as a return to work coordinator.

5. On 6 May 2006, during the course of his employment with Macquarie University, Mr Nicol suffered a psychiatric and/or psychological injury. From 11 May 2006 to 13 October 2006, Mr Nicol was certified unfit for work. In October 2006, Mr Nicol’s employment was terminated.

6. On 23 October 2006, Mr Nicol commenced employment with Cambridge Insurance in the role of a claims assessor.

7. On 19 December 2006, the Workers Compensation Commission issued a certificate of determination determining that Macquarie University was to pay weekly compensation to Mr Nicol until 23 October 2006, when he commenced employment with Cambridge Insurance.

8. From 11 April 2007 to 11 June 2007, Mr Nicol was certified unfit for work due to the recurrence of treatment resistant major depression with anxious features. From 27 September 2007 to 28 September 2007, he was certified fit for suitable duties. From 4 October 2007 to 30 November 2007, Mr Nicol was certified unfit for work due to a recurrence of treatment resistance major depression with anxious features.

9. On 26 May 2016, Mr Nicol lodged an application to resolve a dispute together with medical reports, a statement by him and supporting documentation. No submissions accompanied the application. On 17 June 2016, Macquarie University lodged a reply together with medical reports, witness statements and other documentation. No submissions accompanied the reply. Four applications to admit late documents were made. There is voluminous material.

10. There is a dispute between the parties as to the level of whole person impairment (“WPI”). On 29 September 2009 by consent, an arbitrator made orders remitting the matter to the registrar. On 16 November 2016, Mr Nicole lodged an application to appeal against the decision of the Approved Medical Specialist (“AMS”). On 12 December 2016, the delegate of the registrar referred the matter to Dr Ash Takyar, the AMS seeking an assessment of WPI caused by the psychological/psychiatric disorder deemed to have occurred in October 2006 for nature and conditions of the employment from January 2005 to October 2006.

11. On 19 October 2016, the AMS issued a Medical Assessment Certificate (MAC) under s 325 of the Workplace Injury Management and Workers Compensation Act1998 (NSW) (“WIM Act”) certifying that Mr Nicol suffered from a 50% WPI from his psychiatric injury. The AMS made no apportionment in respect of any pre-existing or subsequent condition, and made no apportionment under s 323 of the WIM Act.

12. Macquarie University appealed the decision of the AMS relying on s 327(3)(c) (incorrect criteria) and s 327(3)(d) (demonstrable error) of the WIM Act.

13. On 12 December 2016, the Registrar (the gate keeper) was satisfied that at least one of the grounds of appeal is made out in accordance with s 327(4)) of the WIM Act and referred the appeal to the Appeal Panel for review of the MAC assessment.

14. On 26 May 2017, the Appeal Panel revoked the AMS’s MAC and issued a new certificate of assessment assessing Mr Nicol’s WPI at 8%.

The statutory scheme

15. I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the Workers Compensation Act 1987 (NSW), the worker must show an injury which is defined in s 4 as follows:

“In this Act:

injury:

(a) means personal injury arising out of or in the course of employment,

…”

16. No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Section 9A(1) reads:

“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.”

17. Chapter 7, Part 7 of the WIM Act provides for medical assessment, including the assessment of the degree of WPI, by an AMS and, by way of review, appeal panels. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [1] per Basten JA.

18. Approved Medical Specialists are appointed under the WIM Act to deal with medical disputes which are defined in s 319 to mean:

“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:

(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker's fitness for employment,

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

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

…

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”

19. Section 323 provides for the deduction for previous injury or pre-existing condition or abnormality. It reads:

“323 Deduction for previous injury or pre-existing condition or abnormality

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

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

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

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

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

...”

20. Section 325 relates to the medical assessment certificate. It reads:

“(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.

…”

21. Appeals against medical assessments are governed by ss 327 and 328 of the WIM Act.

22. Section 327 relevantly reads:

“327 Appeal against medical assessment

…

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

…

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

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

…”

23. Section 328 relevantly reads:

“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. The WorkCover Guidelines may 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 unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.

…

(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.

…”

24. Section 328(2) confines the grounds of appeal which an Appeal Panel may consider, to those pursued by the appellant. Here, the Appeal Panel is confined to whether the assessment was made on the basis of incorrect criteria or there is a demonstrable error.

25. Section 331 of the WIM Act required the Appeal Panel to apply the Guidelines in conducting its review. Section 331 relevantly reads:

“331 Guidelines

Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.”

The Guidelines

26. The parties referred to a number of relevant provisions in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016) (“the Guidelines”).

27. Clause 1.6 provides “a basic summary of some key principles of the permanent impairment assessment.” They include:

“Part 2 – Principles of Assessment

1.6 …

a. The assessment of the impairment involves a clinical assessment as they present on the day of assessment. In this case, the only day of assessment was when the Plaintiff saw the AMS.

…

b. Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.

…”

28. Clause 11.10 of the Guidelines refer to pre-existing conditions. It provides:

“Pre-existing impairment

11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”

29. Clause 11.11 of the Guidelines sets out the Psychiatric Impairment Rating Scale (PIRS):

“11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:

1. Self care and personal hygiene (Table 11.1)

2. Social and recreational activities (Table 11.2)

3. Travel (Table 11.3)

4. Social functioning (relationships) (Table 11.4)

5. Concentration, persistence and pace (Table 11.5) 6. Employability (Table 11.6).”

30. Clause 11.12 of the Guidelines provides:

“11.12 Impairment in each area is rated using class descriptors. Classes range from 1 to 5 in accordance with severity. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms.”

Psychiatric Impairment Rating Scale (PIRS)

31. So far as the PIRS rating scale is concerned, in Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (“Ferguson”), Campbell J explained at [14]:

“It is necessary to set out the requirements of the Guides as to the evaluation of permanent impairment resulting from psychiatric injury. They are found in the Psychiatric Impairment Rating Scale (PIRS) which is applicable by virtue of Chapter 11 of the Guides. The requirements were summarised by the Appeal Panel in [22] to [24] of its reasons in the following terms:

The Psychiatric Impairment Rating Scale ('PIRS') is established as the relevant rating indicia by virtue of Chapter 11 of the Guides in both the 09 and 16 Guides, which are the same. The PIRS sets out six categories of behaviour to be assessed, each being divided into five classes. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired by his injury, and the classes between are in an ascending order of impairment.

The assessor is required to classify each category, and apply the resulting scores as set out in Chapter ll. Each class in the six categories has indicia attached, called ‘descriptors.’ Chapter 11.13 provides that:

“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. Examples of activities are examples only. The assessing Psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”

The indicia contained within the PIRS examples in Chapter 11 therefore are not intended to be exclusive, and are subject to the variabilities that accompany a person seeking psychiatric help, such as those matters mentioned – age, sex and cultural norms.”

The decision of the AMS

32. On 13 October 2016, AMS took the history of Mr Nicol’s injury, summarised his present treatment and symptoms, general health, work history, social activities/ADL conducted a medical examination and recorded his findings on examination, gave brief comments regarding other medical opinions and findings and completed the PIRS rating form. While the AMS detailed Mr Nicol’s medications, I have omitted them there. As previously stated, there was voluminous material lodged by both parties, but no submissions accompanied the application or the reply.

History

33. The plaintiff provided the following history to the AMS at [4]. I shall summarise it as follows.

34. In October 2006, Mr Nicol commenced working at Macquarie University as a “return to work coordinator”. After two months, Mr Nicol had implemented new systems and this caused his boss’ attitude towards him to change.

35. In May 2006 Mr Nicol said that he got up to go to work but did not leave. He sat on his bed for two hours waiting to muster the energy and his flatmate asked why he had not left. He said that he saw his general practitioner the next day. On 11 May 2006, Mr Nicol ceased work. Two weeks later he attempted to return to work but his manager blocked him and told Mr Nicol that he could not work with him. Mr Nicol told the AMS that Macquarie University told him to have two weeks off and offered him a redundancy. Mr Nicol saw an independent examiner who reported that there was no psychiatric injury and the claim was denied. Mr Nicol told the AMS that he had to work and he moved to Cambridge (now Xchanging) and he began to see a psychiatrist weekly from mid July 2006 while he was working for Xchanging.

33. Mr Nicol informed the AMS that his employment was terminated as he had no leave. He would generally take one to two days off per month but would need three months off because of his illness. He said that his next employer, General Electric, were more supportive even though he required one year off during the two years that he worked there. They held his position for him but he felt that he could not return to work because of the trajectory of his illness.

34. The AMS recorded Mr Nicol’s present symptoms as:

“He described pervasively lowered mood typically rated at 4/10 (where 1 is most depressed, 10 least depressed and 7-8 reflect normal mood). He said this his mood was steadily low and he described general anhedonia, other than talking to his mother once per week which he has only more recently commenced this year. He has minimal energy, rated at 5-10% of baseline and very low motivation, sometimes finding that he cannot muster the motivation or energy to brush his teeth. He has short-term memory difficulties, sometimes forgetting what day of the week it is and other times watching shows that he has previously seen (but he cannot recall watching the show). His appetite is reduced to two meals per day but he comfort eats at times and he does not enjoy eating food. His sleep is reduced to five hours per night, waking 3-4 times per night and with an hour or two of initial insomnia. He does not read. He felt that he could probably read a few lines, possibly up to a paragraph but not beyond this. He has no self-harm or suicidal ideation, intent or plans but he presented with negative ruminations of loss of hope, helplessness, worthless and he said he wanted to go back to New Zealand but he felt stuck.

He experiences agoraphobic avoidance. He experiences panic attacks if he leaves the house, with symptoms consisting of shortness of breath, sweating, palpitations, elevated heart rate and an impulse to flee. He experiences anxiety when he is out of the home. If he had visitors in the past he would not answer the door, though he does not generally have visitors now. He described low frustration tolerance and loss of temper. There was clear restlessness and psychomotor activity in his hands at review. He experiences muscular tension in his legs and back at times. He is often fatigued easily.”

38. Under the findings on mental examination, the AMS stated at [5]:

“5. FINDINGS ON MENTAL EXAMINATION

Mr Gregory William Nicol presented as a male of 42 years of an average height and larger build who had a short beard and was moderately malodorous during the review. He was shy, sitting in a stooped posture at times in the review, with reduced eye contact. He walked out somewhat slowly, with a hunched posture. There was significant psychomotor agitation evidence in his hands, where he was frequently fidgeting and moving during the review. He became embarrassed when I mentioned this (when I was asking about restlessness). His mood was low and his affect was restricted in range and highly anxious and well communicated. His speech was soft, of restricted rate at times and with soft thought form abnormality in the form of circumstantiality. He described lowered mood and anhedonia generally, reduced appetite, and a range of other depressive symptoms without self-harm or suicidal ideation. He described agoraphobic avoidance and panic attacks when he leaves the house with anxiety when he leave the house as well. He described loss of hope with feeling of helplessness and reduced self-worth. He had good insight and has been engaged in extensive treatment over the years with the various treatment providers, though he has had two psychiatrists retire and a general practitioner retire.”

39. The AMS reported at [7] that Mr Nicol presented in a manner that was consistent with the history provided. He presented with evidence of psychomotor agitation, low mood, reduced eye contact, sitting in a slumped posture, withdrawn and mildly malodorous and this appeared to be consistent with the history he provided. The AMS recounted some encounters between Mr Nicol and his boss. In May 2006, Mr Nicol reported a changed in his mental and said that he felt he was no longer able to cope.

40. There was conflicting medical opinion received by the AMS, which he summarised under the heading “reasons for assessment”.

41. There is medical evidence that does not support Mr Nicol’s claim, namely that of Drs John Roberts and Allan White. These doctors opined that Mr Nicol’s psychiatric injury was not related to his employment with Macquarie University.

42. Dr John Roberts, in his report dated 3 August 2006, opined (at 12):

“There is no mental illness that would dissipate if ones superior at work would not be there. In my opinion Mr Nicol has no symptomology whatsoever of any reactive state, he has not one symptom of heightened anxiety of inappropriate degree; his assertion of incapacity does not correlate with his presentation.

I do not consider that Mr Nicol requires any psychiatric or psychological treatment and there is no psychiatric condition operative. In terms of my speciality he is fit for all duties without restrictions.”

43. Dr Allan White stated in his medico legal report dated 9 July 2007:

“Based on the information available to me at the time of the preparation of this report, it is my opinion that Mr Nicol suffers from a constitutional psychiatric disorder by which I mean a medical illness but that psychiatric disorder cannot be responsibly or logically attributed to his employment with Macquarie University. He will probably require a lifetime of psychiatric treatment but that is an issue independent of his employment.”

44. Dr Roberts in a later medico legal report dated 11 October 2007, stated (at 10 and 12):

“The current differential diagnosis is that of major depression with psychosis or a differential diagnosis of schizophrenia with a further differential diagnosis of a substance induced disorder, which may be either related to medication taken to illicit substances used no comment can be made in this regard because of the refusal of Mr Nicol to undergo urine drug screening.

Mr Nicol now presents with symptomology of a serious mental illness which was not present previously. I do not consider that it can be stated on reasonable psychiatric grounds that the circumstances and conditions of his employment with Macquarie University could be deemed to be psychophogenic namely capable of causing a severe mental illness.

…

I agree with Dr Allan White and his opinion namely that regrettably Mr Gregory Nicol is presenting with manifestations of a serious mental illness of possibly life long duration, unrelated to the circumstances and conditions of his employment.”

45. The medical opinions before the AMS that support Mr Nicol’s psychiatric injury were that of Dr Ben Hanson (Mr Nicol’s treating general practitioner), Dr K Masood Khan (Mr Nicol’s treating psychiatrist), Dr Peter Sternhell (Mr Nicol’s treating psychiatrist), Dr Raymond Tint Way (psychiatrist) and Dr Ben Teoh (psychiatrist).

46. The treating psychiatrist, Dr Masood Khan, in his medico legal report dated 23 June 2009, indicated that:

“Mr Nicol’s current diagnosis as per DSMIV is major depression with grief reaction. His major depression is a pre-existing condition for which I was treating him in weekly sessions prior to the injury of 14 October 2008.”

47. Dr Khan indicated later on 27 October 2009:

“Mr Greg Nicol did sustain an exacerbation of a pre-existing illness on 4/11/2008. This exacerbation has now ceased.”

48. When Dr Khan retired in May 2013, he referred Mr Nicol to another psychiatrist, Dr Peter Sternhell. When consulting Dr Sternhell, Mr Nicol referred to problems with his immediate manager at Macquarie University where he became depressed for the first time. Dr Sternhell made a diagnosis of severe depression with melancholic features and he was of the opinion that Mr Nicol’s depression which arose while he was working at Macquarie University had never fully remitted.

49. On 25 August 2013, the psychiatrist Dr Ben Teoh provided a diagnosis of major depression with a poor prognosis.

50. Dr Ben Hanson was Mr Nicol’s treating general practitioner over many years. He has provided WorkCover certificates and provided medical reports. The Appeal Panel covered the reports of Dr Hanson in more detail. I have reproduced all that the AMS had to say about Dr Hanson’s evidence as the Appeal Panel took issue with the AMS’s summation of Dr Hanson’s reports. The AMS’s summation is as follows:

“Dr Hanson’s letter of 28.02.2007 provided a referral to Dr Masood Khan and indicated that Mr Nicol was prescribed esctalopram 40 mg nocte (twice the usual maximum dose) with a diagnosis of major depression with anxious features and suicidal thoughts. It was noted that there were possible psychotic features. The letter of 30.03.2007 also commenced on the psychotic features and indicated Solian (amisulpride) 200 mg daily had been prescribed as an antipsychotic.

Mr Hanson (his treating doctor’s report 21.07.2007) noted that Mr Nicol had first presented in mid-2006 with a range of depressive symptoms and a diagnosis of an adjustment disorder with mixed anxiety and depression was made. He received cognitive behavioural therapy through his treating psychiatrist (Dr Khan). He was prescribed fluoxietine 20 mg according to this letter. A revised diagnosis of major depression was noted later on after psychiatric reviews. The letter noted that in late February 2007 Mr Nicol had presented with depression and anxiety symptoms but with increased suicidal and psychotic features. He was re-referred to Dr Khan. At this point he was prescribed escitalopram 50 mg (2½ times the usual maximum dose) and amisulpride 200 mg. The letter noted that he was prescribed escitalopram 60 mg as well as amisulpride 100 mg. The letter of 19.02.2008 indicated that Reboxetine 2 mg bd was being prescribed along with escitalopram 60 mg nocte, quetiapine 25 mg nocte and amisulpride 100 mg bd. The letter of 24.04.2008 indicated that Reboxetine and quetiapine had been ceased.

A further treating doctor’s report of Dr Hanson (22.12.2008) was also noted.”

51. The AMS reported that on 15 October 2015, Dr Raymond Tint Way (psychiatrist) noted that that there was no prior history of psychiatric illness and included the quote below:

“A diagnosis of a recurrent major depression following a workplace psychological injury from a job at the university between 2005 and 2006 was noted which had later led him to resign from a job at General Electric in 2011.”

52. However, the AMS did not record what Dr Way reported in relation to his following opinion, namely:

“I believe that the work injury in 2005 at Macquarie University is a substantial contributing factor to his condition of recurring major depression.”

53. Under the heading “Summary” the AMS stated at [7]:

“•   summary of injuries and diagnoses:

Mr Gregory William Nicol is a 42-year-old male who was employed as a return to work coordinator for Macquarie University for one year and nine months approximately. He described a change in his mental state two months after commencing work in the context of increasing conflict and a change in attitude from his manager who he said did not take well to the changes that he began to implement. He felt that after claimants began to drop his manager became increasingly aggressive and combated (sic), resulting to humiliating him publicly in various ways. He said that his manager then began to exclude him from meetings and taunt him.

He told me that although he reported a change in his mental state in May 2006, it is highly likely that there was a change preceding this that he did not notice. He has had extensive and aggressive treatment with two psychiatrists and a long-term general practitioner, all of whom have retired sequentially. He has been prescribed very high doses of antidepressants, including escitalopram at a dose thrice the usual maximum 20 mg (60 mg), and the history indicates that at points he developed psychotic symptoms. At review he did not present with features of psychosis that were evident.

He described continuing to experience a range of high grade depressive symptoms, with anxiety they would likely be pervasive if he were to leave the house on a daily basis. He experiences panic attacks when he leaves the house with agoraphobia. He has no capacity to work in the context of his significant symptoms which have persisted through trials of extensive and full treatment with antidepressants and psychological therapy as well as psychiatric supervision. The condition appears to be at a point of maximum medical improvement.”

54. Under the heading “Evaluation of Permanent Impairment” the AMS was asked at question at 8(g):

“g. Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.” (My emphasis).

55. The AMS answered “Nil”. This statement indicates that the AMS did not consider that Mr Nicol had suffered a subsequent injury at Cambridge.

56. Finally, the AMS completed the PIRS rating form, providing the following reasons and Class assessment in relation to each category. I have only reproduced the categories that are the subject to judicial review and will refer to them in more detail under the PIRS ground of judicial review.

PIRS Category	Class	Reason for Decision
Self Care and personal hygiene	3	He presents with lack of independent functioning - he showers on a monthly basis and may not necessarily wear clean clothes. He was malodorous at review. He may heat meals or eat takeaway but frequently misses at least one meal per day and does not prepare for meals himself. He would need intensive support to ensure minimum hygiene and nutrition.
Social and recreational activities	3	He generally never leaves his place of residence. He does not have contact with family members or close friends other than speaking to his family once per week in New Zealand. He does not have visitors. He leaves his house generally once per month.
Travel	4	While he can leave his house without a support person, he only does so on a monthly basis. He can attend local shops but generally does not, choosing to have his groceries delivered. He probably would need a support person to leave his house in a more regular normal manner because of high anxiety and also the impact of cognitive difficulties. Therefore, while he can travel to local areas without a support person, he only does this extremely infrequently, and generally leaves his house only once per month.
…	…	…
Concentration, persistence and pace	4	He reported having difficulty reading more than a paragraph before losing focus. He had difficulty following instructions in the review. There was evidence of concentration problems in the review. He struggles to live alone and lives in a boarding house where there is an element of supervision.

57. The aggregate score totalled 23 which equates to 50% WPI. On 19 October 2016, the AMS issued a certificate of assessment and assessed Mr Nicol with a total WPI of 50%.

Submissions made to the Registrar and the Appeal Panel

58. Macquarie University sought to appeal the MAC on the following grounds:

1. The AMS assessment was made on the basis of incorrect criteria in accordance with s 327(3)(c) of the WIM Act; and

2. The MAC contains demonstrable errors in accordance with section 327(3)(d) of the WIM Act.

59. Macquarie University made lengthy submissions. It identified three main issues. They are that the AMS:

1. failed to take a correct history of the subsequent psychological injury sustained while Mr Nicol was employed by Cambridge; (failed to take correct history)

2. failed to make a deduction on the assessment of permanent impairment due to the ongoing effects of the subsequent injury sustained while Mr Nicol was employed by Cambridge; (failure to make deduction) and

3. The AMS erred in the assessment of Tables 11.1, 11.3, 11.4 and 11.5 Psychiatric Impairment Rating Scale (PIRS) in relation to the following categories and that the AMS ought to have assessed Mr Nicol as follows:

1. Self care and personal hygiene – Class 2

2. Travel – Class 3

3. Social functioning – Class 3

4. Concentration, persistence and pace – Class 3 (error in assigning PIRS classes).

60. At 2.11 to 2.14 and 2.18 to 2.19 Macquarie University submitted:

“2.11 This evidence was filed with the Workers Compensation Commission and served on the respondent's solicitor under cover of application to admit last documents (AALD) filed 2 September 2016 [before the decision of the AMS]. The appellant notes the following further evidence contained in those documents:

(a) …A factual Investigation report from Verifact dated 23 December 2008 Is provided. Attached to that report is a statement from the respondent dated 17 December 2008 (page 74 of the AALD dated 2 September 2016).

(b) In that statement, the respondent stated that on 22 October 2006 he commenced his employment with Cambridge at which time his depression from the time he worked with the appellant employer had largely resolved and he was not feeling stressed or depressed. (paragraph 8 of statement).

(c) Mr Nicol noted at [13] that he had some time off in March 2007 however no provision was made to ensure the work would be covered. He said that when he returned to work Keelle Walsh embarrassed him in front of other staff and she criticised him for taking off his tie.

(d) Mr Nicol stated at [14] and [15] that his direct supervisor, Catherine, proceeded to conduct an unexpected performance review, of him. He said that she accused him of being late In the past on a regular basis. It was said from that time he began to feel ill again.

(e) Mr Nicol at [18] said he went back to work in June 2007 to October 2007 and then went off again In January 2008 and returned in April 2008. He said that when he went off in October 2007 this was due to feeling a lot of pressure at work. He also noted an incident where Mark Harper, operations manager, was giving a presentation and he did not appreciate him speaking out in the meeting.

(f) Mr Nicol at [20] said he returned to work in January 2008 at which time Jan Mitchell, national HR manager, told him that he had let a lot of people down and that made him feel worse. He noted Ms Mitchell made a comment that he was seeking pity or sympathy and she wouldn’t be a part of it.

(g) Mr Nicol at [30] said that after this time things settled down however eventually one of his colleagues, Neil, died over the weekend. He said he had known Neil for some time and he later learned that he had committed suicide due to work load.

(h) Mr Nicol at [31] said that when the funeral was held he believed Cambridge did not represent Neil in a fitting way and was offended that Mr Harper wore a bright coloured shirt and tie. He said he learned that Cambridge had not sent any flowers to Neil’s family. He said during a team meeting he raised the issue that Cambridge had not represented themselves very well in Neil's death.

(i) Mr Nicol at [32] said that after this meeting, Ms Walsh asked him to meet with her and Mr Ryan Patten, HR consultant, and they went to a room where Mr Harper was also present. He said that he was unaware of the purpose of the meeting and felt quite threatened. He said he again raised the issues of the flowers and Mr Harper became enraged and told him to get out of the room.

(j) Mr Nicol at [33] and [34] said he sent an emailto the CEO of Cambridge and asked if Cambridge would mind reconsidering their dedication to Neil. He said afterwards he was asked to attend a meeting with Ariane … and Audrey Lee. He said he was not told what the meeting was about. He said in the meeting Ariane said that his email to her in September had been threatening and his email to the CEO had been inappropriate. He said he felt under attack and he told Ariane to shut up. He said at the end of the meeting Ms Lee told him that they intended to terminate his employment.

(k) At page 93 of the AALD dated 2 September 2016, a letter is provided addressed to the respondent from CGU dated 3 February 2009. CGU advised that liability for his claim had been accepted.

2.12 Macquarie University submits that it is clear from the abovementioned evidence that the respondent suffered a significant psychological injury as a result of his employment with Cambridge. A claim was made with Cambridge’s workers compensation insurer, CGU, and liability for that injury was accepted. The respondent received compensation benefits as a result of that condition.

2.13 Macquarie University submits that the AMS has failed to take an accurate history of the respondent’s subsequent injury with Cambridge. On this basis, the appellant submits that there is a demonstrable error on the face of the MAC within the meaning of section 327(3)(d) of the 1998 Act.

2.14 Macquarie University submits that the AMS has also failed to make an appropriate deduction of his assessment of permanent impairment due to the ongoing effects of the injury suffered by the respondent whilst employed by Cambridge and has failed to provide any explanation for his failure to do so.”

61. Macquarie University referred to the decision in Schofield v Abigroup Limited [2016] NSWSC 954 (“Schofield”), where Fullerton J stated at [33]:

“…Accordingly in assessing the degree of permanent impairment as a result of that injury, the Approved Medical Specialist was required to make an appropriate adjustment for injury that was the result of the plaintiff’s employment after the deemed date in the course of employment outside the jurisdiction.”

62. Schofield concerns a hearing loss or, as it is sometimes known, “boilermaker’s deafness”. The plaintiff worked in different industrial environments in New South Wales between 1957 and 1981. He left New South Wales in 1981 and worked in a number of noisy industrial environments in Queensland, the Northern Territory and Western Australia until 2001.

63. Section 17 of the Workers Compensation Act contains special provisions for gradual hearing loss as to who is liable to pay compensation. In Schofield, the issue to be decided was whether the last noisy employer in New South Wales (the defendant) was liable to compensate the worker for impairment to hearing sustained outside New South Wales after the deemed date of injury. Fullerton J held that the defendant’s construction of s 319(c) of the WIM Act as it applied in the context of the Workers Compensation Act was the correct construction. That is, the defendant was liable under s 17(1)(c)(ii) of the worker’s hearing loss that had occurred “in one blow” as at the deemed date of injury of January 1981.

64. Fullerton J considered that the worker’s hearing loss was caused by a gradual process predating the deemed date of injury. Therefore, in assessing the degree of permanent impairment as a result of that injury, the AMS was required to make an appropriate adjustment for injury that was the result of the worker’s employment outside New South Wales after the deemed date of injury.

65. In Schofield, the question to be determined was the extent of the defendant’s liability for the earlier injury deemed to have occurred in New South Wales. The reason that the deduction was made for his latter employment was because it occurred outside the jurisdiction of New South Wales. Schofield does not assist the situation here where Mr Nicol suffered injury entirely within New South Wales.

Mr Nicol’s submissions

66. So far as the failure to take a correct history (issue 1) is concerned, Mr Nicol’s basic contention is that the AMS had all the material before him and has adequately referred to the material that was before him when assessing the PIRS scale. He has referred to his own observations and the history he has taken, and has therefore complied with his obligations when undertaking a medical assessment for the purpose of completing a MAC.

67. Mr Nicol submitted that Dr Hanson described the incidents at Cambridge as an exacerbation of his pre-existing condition. The depressive condition was described in Dr Hanson’s report of 21 July 2007 as being a result of the bullying at Macquarie University.

68. Paragraphs 2.9 (a) to (e) of Macquarie University’s submissions all deal with Dr Hanson's evidence as it is contained in his medical certificates and reports dated 22 December 2008 and 27 February 2009. These reports were before the AMS and were referred to by him on page 7 of the MAC. It is clear the AMS has read the doctor’s reports and considered them and he also refers to the respondent's statement. Clearly the AMS has considered Dr Hanson's reports which constitute the basis of “issue” one. The reports of Dr Hanson were available and dealt with all the issues Macquarie University is complaining of and have been considered by the AMS.

69. In so far as Macquarie University’s submission that the AMS’s failure to take a correct history is shown by the fact that Mr Nicol told an investigator that he “was almost recovered” when he started with Cambridge, this discounts all the medical evidence which is that he was under treatment from the time he started with Cambridge. Mr Nicol refers to Dr Hanson and Dr Khan where Dr Khan clearly states that Mr Nicol was being treated on a weekly basis before the death of his work colleague and the aggravation from Cambridge had ceased before Mr Nicol started with CGU.

70. Issue 2 (failure to make deduction) is dependent on a finding that the AMS has not properly considered the material on the Cambridge incidents; Mr Nicol’s submission is that the AMS has and so this is not an issue.

71. As to issue 3 (error in applying PIRS scale) this is that the AMS has not explained the difference between his PIRS assessments and Dr Way’s assessments. Mr Nicol submitted that the AMS based his PIRS assessments on the interview he had with Mr Nicol, the AMS does refer to the other medical reports which are referred to on page 7 of the MAC, where he specifically refers to Dr Way’s findings and that deals with any difference between their assessments.

The Registrar’s decision

72. Macquarie University claimed that the medical assessment by the AMS should be reviewed on two grounds. They are that the assessment was made on the basis of incorrect criteria s 327(3)(c)) or the medical certificate contains a demonstrable error s 327(3)(d). On 12 December 2016, the Registrar was satisfied that at least one of the grounds of appeal was made out in accordance with s 327(4)) of the WIM Act and referred the appeal to the Appeal Panel for review of the AMS’s assessment.

Incorrect criteria and demonstrable error

73. In terms of what is to be determined as “incorrect criteria”,  the Minister for Police, who moved the second reading of the Bill (NSW Legislative Assembly, Hansard, 19 June 2001, p 14772), indicated that:

“It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied.”

74. In Campbelltown City Council v Vegan [2004] NSWSC 1129, this passage from the second reading speech was extracted, and it was stated by Wood CJ at CL at [59]:

“Although the highlighted passage is somewhat oblique, it tends to suggest that the “criteria” upon which assessment is to be based are to be found in any relevant guides, including guides issued by WorkCover which have been issued for the assessment of impairment and that appeal lies where they have been incorrectly applied.”

75. The meaning of “demonstrable error” has been discussed in cases such as Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, where Hoeben J said at [39]:

“39 I do not propose to, nor is it necessary, that I define what is “demonstrable error” for the purposes of s 327 of the Act in an exhaustive way. 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 and the document referring the matter to the AMS for assessment.”

The decision of the Appeal Panel dated 26 May 2017

76. The Appeal Panel consisting of Arbitrator John Wynyard a psychiatrist) and Approved Medical Specialist Drs Robert Gertler and Brian Parsonage conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. The Appeal Panel conducted a review of the medical evidence.

77. Macquarie University requested that Mr Nicol be re examined by an AMS who was a member of the Appeal Panel. The Appeal Panel determined that such a re-examination was necessary and this re-examination was conducted by Dr Gertler at [87] of the Appeal Panel’s reasons.

78. The Appeal Panel stated in its reasons for the decision at [68]-[87]:

“68. Although the AMS referred to the reports of Dr Hanson, he did not specifically mention those documents which were in a bundle marked from pp 391 to 549. These documents were not referred to by the AMS at paragraph 10[c] which is headed “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs”.

69. The comments that the AMS did make reference to were principally the medication history that has been prescribed over the course of the claimant’s treatment for his condition. No attempt was made by the AMS, with respect, to differentiate between the various stages of the claimant’s illness, nor as to whether the subsequent employment had caused any further injury. The standard form at 8[g] of the Medical Assessment Certificate provides:

“[g] Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment, this should not be included with the assessment of impairment due to the subject work injury.”

70. The AMS has answered “nil”.

71. There is a presumption regularity that applies to the conduct of administrative decision makers, including an AMS. Such a presumption extends to the assumption that an AMS will have read all the material referred to him/her. However, a presumption may be rebutted by evidence, and in this case we are satisfied that, regrettably, the AMS has not read the material provided to him. He has accepted at face value, the oral history given to him at the assessment. In one sense, that approach is understandable. The referral related to a defined date of injury, and the AMS may well have assumed that matters of causation had been resolved within the Commission, where evidence is recorded, lawyers are retained, a legally qualified arbitrator presides, and a right of appeal exists.

72. However, since a number of cases were decided in the superior Courts, the question of causation before an AMS can be a live issue where, as here, a number of causes are suggested within the material accompanying the referral. These cases were discussed by DP Roche in Jaffarie v Quality Castings Pty Ltd. It is accordingly necessary for the AMS to consider, not only the assessment of WPI, but, where necessary, whether the whole of the WPI (or any of it) has been caused by the subject injury.

73. It can be seen that the claimant has alleged that he suffered injury with the appellant employer in May 2006, and with Cambridge in November 2008.

74. The claimant has made a number of statements over the years, sometimes alleging that the appellant employer is responsible for his condition, and at other times accusing Cambridge.

75. With respect, we are unable to place any weight on his accounts. They are contradictory, and they are made by a person that all medical experts agree is significantly affected by a psychiatric condition.

76. The reports of Dr Hanson we find to be persuasive. They were made contemporaneously with the events they were describing, and the opinion expressed has remained consistent over the years. Although Dr Hanson is a general practitioner, he has devoted a great deal of industry to provide comprehensive reports during the currency of this matter, and clearly has a familiarity with psychiatric terminology and the definitions contained in DSM IV.

77. Moreover, the objective facts support the opinion of both Dr Hanson and Dr Sternhell, the treating psychiatrist who took over management of the claimant from Dr Khan when Dr Khan retired.

78. There is no evidence the claimant needed to consult Dr Hanson for psychiatric treatment between June 2007 and November 2008. Both Dr Hanson and Dr Sternhell were satisfied that the claimant’s condition had then gone into remission. Dr Hanson was of the view, expressed many times, that there had been an identifiable further injury in November 2008 with Cambridge, which caused a full blown recurrence of the claimant’s condition. Dr Hanson explicitly rejected the suggestion that the event of November 2008 had been an exacerbation of the claimant’s existing condition. That condition, Dr Hanson explained had been in remission , and the November 2008 event had caused that condition to recur.

79. We agree with that explanation. As at June 2007, the claimant's symptoms had largely resolved. The new injury of November 2008 was the event that caused the symptoms to recur. Accordingly we are satisfied that the appellant employer was responsible for the claimant's level of functioning as at June 2007. The subsequent injury at Cambridge and other subsequent stressors such as the diagnosis of [another medical condition] have contributed to his present level of dysfunction.

80. In his submission the claimant sought to support the decision of the AMS. He said that the AMS had all of the material before him and that he had adequately referred to it in the course of the reasons given by him. He said that the AMS had considered the reports of Dr Hanson and we were referred to the AMS’s comments at page 7 of the MAC. That page contained paragraph 10[c] of the Reasons given by the AMS, the content of which we have referred to earlier in these reasons.

81. We regard as significant that although the AMS mentioned the report of 22 December 2008, The AMS did not discuss, nor did he refer to the opinion which we have discussed above by Dr Hanson, that the confrontation with Cambridge resulted in a new injury. The claimant submitted that (at ARD p. 90) Dr Hanson had described the Cambridge as an exacerbation of the claimant’s pre-existing depression. This is incorrect. Dr Hanson there repeated his earlier opinion, to which we have referred, that the claimant suffered a severe recurrence of major depression. We have already referred to Dr Hanson’s opinion that the question was technically incorrect and that the claimant’s prior condition was in remission.

82. Moreover, the AMS, as we have already indicated, did not consider the question of causation regarding the circumstances of the claimant's subsequent employment and termination.

83. The claimant submitted that the appellant employer had argued that essentially the respondent told an investigator that he “was almost recovered” when he started with Cambridge. We have reproduced three paragraphs from that statement in our reasons which indicate that the claimant continued to take the medication that he was prescribed when he sustained his injury with the appellant employer. The medication was clearly effective at the time of the injury with Cambridge. The claimant said that his depression had largely resolved and that impression was confirmed by his treating medical practitioner.

84. The claimant submitted that the “aggravation with Cambridge” had ceased before he started work with what was described as “GCU” (we assume the claimant meant General Electric). There was no evidence to support that contention. We are satisfied that the incidents at Cambridge caused a fresh injury in the form of the recurrence of the major depression which, at that time, was in remission.

85. The claimant submitted that the appellant employer’s third point as to the inadequacies of the PIRS assessments are matters that we are able to reconsider for ourselves if we found there to be a demonstrable error in his matter. We concur, as will be seen.

86. We are satisfied that the AMS has made a demonstrable error in finding that there had been no subsequent injury, nor considering that issue in his reasons, which we are satisfied do not attain the minimum level as discussed in Campbelltown City Council v Vegan …

87. Accordingly, the claimant was re-examined by Dr Robert Gertler of the Panel on 14 March 2017. Dr Gertler’s report follows.”

Re examination by Dr Gertler

79. On 14 March 2017, Appeal Panel member Dr Gertler re examined Mr Nicol. Dr Gertler took Mr Nicol’s medical history, and where it differed from previous records” recorded a history in relation to Mr Nicol’s employment with Cambridge. Dr Gertler noted that the history obtained from Mr Nicol at the time of his assessment by the AMS on 13 October 2016 was discussed and in large part confirmed. Dr Gertler stated at [87]:

“… Despite still being depressed, spending hours in bed during the day, neglecting his self care, being socially withdrawn, and eating poorly, Mr Nicol had to work because he was not eligible for benefits of any kind. It was then that he obtained the position at Cambridge.

Despite commencing work at Cambridge, Mr Nicol had a friend who would get him to work every day. He continued to see Dr Khan weekly and to remain on psychotropic medication.

His level of self-confidence remained low and he was chronically tired. He required days off on leave, after only several weeks of employment with Cambridge.

During 2007 Mr Nicol required longer periods of leave because of his ongoing emotional symptomatology. Nevertheless he remained employed at Cambridge until 2008.

In late 2008 an employee of Cambridge committed suicide. Mr Nicole had been friendly with this person and objected to the manner in which the company managed the deceased staff members’ bereavement. When he objected, and contacted senior management, he was called to a meeting. He was subsequently told that his position was terminated and left work in December 2008.

Mr Nicol instigated a claim against Cambridge, but several months later, with the assistance of a rehabilitation provider, obtained a position with GE. He apparently withdrew the claim against Cambridge at that time.

Mr Nicol remained depressed, continuing to neglect his self-care, and requiring frequent days off work. He last worked for GE in October 2010. He was then on leave for one year before resigning in October 2011. He has not worked in any capacity since.”

80. Dr Gertler noted that since the original MAC was issued in October 2016, there had not been a change in Mr Nicol’s situation in terms of his symptomology, social activities and his treatment.

81. Dr Gertler recorded his findings on clinical examination. He did not undertake any further investigations. Dr Gertler’s findings are record under the heading “Comments” as follows:

“The PIRS rating form was completed by [the AMS] in October 2016. He attested to his level of impairment at that time. This whole level of impairment in my opinion, continues.

The date of injury in October 2006 would coincide with Mr Nicol having his compensation claim rejected by the insurer, following which he returned to the workforce, even though he appears not to have fully recovered at the time and was still suffering from depression.

…”

82. Dr Gertler records that prior to the episode at Cambridge he would suggest that his level of whole person impairment was significantly less than it is at present.

83. The Appeal Panel adopted the opinion of Dr Gertler and continued:

“88. … We concur that the PIRS assessment by the AMS is appropriate to the claimant's present level of impairment. We also concur with Dr Gertler that at the time of his injury with Cambridge, the claimant's whole person impairment was significantly different to his current condition.

89. Chapter 11 of the Guides provides for the classification of six categories in which the assessor is required to assess the behavioural consequences of the psychiatric disorder. Whilst an AMS is required to assess the WPI of a claimant as he/she presents for assessment in accordance with Part 1.6(a), an exception is made in Chapter 11 regarding pre-existing impairment at Chapter 11.10. It is appropriate to assess the claimant's relevant WPI by using the method set out in that subparagraph, which provides:

“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker's current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”

90. This method is appropriate also to assess a claimant’s WPI where there has been a subsequent injury, as in this case, by adopting the pre-existing impairment assessment as the applicable assessment. The evidence is available herein upon which to recalculate the PIRS. Although the appellant employer confined its appeal to only four categories of the PIRS, the Panel in obliged to correct all errors it finds in revoking the original MAC. We have accordingly reassessed each category.”

84. The Appeal Panel then assessed each category of PIRS. I shall refer to this part of the Appeal Panel’s decision later in this judgment under judicial review ground (3).

85. The Appeal Panel concluded at [120]-[122]:

“120. Using the PIRS to measure impairment according to the Guides the medical class score is 2 on an aggregate score of 12. That entitles the claimant to a 6 per cent WPI.

121. The panel considered that the claimant had had a significant response to treatment which had caused an apparent substantial elimination of his permanent impairment. The panel considered that the claimant was likely to have reverted to the original degree of impairment if treatment was withdrawn. There had not been a total elimination of permanent impairment. In line with section 1.31 of the Workers Compensation Guidelines the panel considered that an additional 2% WPI was appropriate.

122. The panel found that the worker’s total permanent impairment due to his psychiatric injury sustained when working for the appellant employer was 6+2 = 8% WPI.”

86. On 26 May 2017, the Appeal Panel revoked the certificate of assessment of the AMS and issued a new certificate of assessment assessing Mr Nicol’s WPI at 8%.

Obligation to give reasons

87. Before I deal with the grounds of judicial review, I will set out the requirements of both the AMS and the Appeal Panel’s obligation to give reasons.

88. I adopt the approach that I should read the Appeal Panel’s reasons for decision as a whole and should not read its reasons with an eye finely tuned for error: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 291). As to what constitutes sufficient reasons of a Tribunal member (and Appeal Panel), this is set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 40; [2013] HCA 43; 88 ALJR 52 (“Wingfoot”) at [47], [55]-56] and Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 (“Vegan”).

89. I shall briefly refer to Wingfoot and Vegan.

90. In Wingfoot, the High Court set out the function of a Medical Panel at [47]. It stated:

“47 The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”

91. In Vegan at [121] and [122], Basten JA (with Handley and McColl JJA agreeing) stated:

“121 Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant’s condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”

Grounds of Review

92. There are numerous grounds of review, however the main grounds of review can be summarised as follows:

1. The Appeal Panel denied Mr Nicol procedural fairness as it failed to afford him an opportunity to address the issue of apportionment during the clinical assessment carried out by a member of the Appeal Panel (procedural fairness);

2. The Appeal Panel misapplied its statutory task in respect of causation, thereby constructively failing to exercise its jurisdiction and the Appeal Panel erred as it assumed that there had been a subsequent injury which resulted in a degree of permanent impairment. In approaching the task from this point of departure, it erred in respect of the question of causation of the degree of permanent impairment (causation): and

3. The Appeal Panel applied an incorrect methodology to the evaluation of permanent impairment in respect of the apportionment and thereby misconstrued its task. It thereby failed to exercise jurisdiction. Also the Appeal Panel’s approach to apportionment by treating it as causally severed when there was no probative, factual or legal basis to do so. (apportionment).

93. I shall deal with procedural fairness first and then Grounds 2 and 3 together.

Procedural fairness – Ground 1

Submissions of Mr Nicol

94. Mr Nicol submitted that there was no medico-legal opinion that portrayed an apportionment. Nor was there medico-legal opinion that supported a negative conclusion as to the causative impact of the work injury over time, including a new, separate or independent psychiatric or psychological injury as a result of his work with Cambridge or as a result of any other aspects of his life.

95. Further, Mr Nicol says there was no medico-legal opinion that suggested that what happened after the time of cessation of Mr Nicol’s employment with Macquarie University was a new injury, an unrelated injury or a causally different injury. Although Mr Nicol had made a claim while employed at Cambridge, the making of that claim did not legally or factually mean that the workplace injury suffered in the course of employment with Macquarie University was accompanied by a new injury, an unrelated injury or a causally different injury.

96. According to Mr Nicol, due to the nature in which the matter was presented to the AMS, he did not need to deal with this issue of a new injury, an unrelated injury or a causally different injury. Macquarie University raised the issue of apportionment at the time of the Appeal Panel process and that it is apparent upon reading paragraph [87] that the AMS did not obtain any relevant history or make any relevant enquiry as to matters relevant to the apportionment question or causation question at the time of the clinical interview. Rather, the language of the AMS is that of recurrence as opposed to a new injury, an unrelated injury or a causally different injury.

97. Therefore, according to Mr Nicol, on the known materials there was no issue about an apportionment approach that would effectively give rise to a deduction of 88% for a post existing condition, and there was a denial of procedural fairness in this matter.

98. Mr Nicol further submitted that on the known materials at the time of the assessment by the AMS, the medico-legal opinion either accepted a causal connection and a causal relationship between Mr Nicol’s employment with Macquarie University, and his psychiatric and psychological injury as it developed and deteriorated over time during that employment and thereafter, or, it simply adopted the position that the injury was not work related. None of the medical opinion sought to attribute any material aspect to the work undertaken with Cambridge.

99. Mr Nicol referred to the decision of Frost v Kourouche [2014] NSWCA 39 (“Frost”). The issue in Frost was procedural unfairness where Ms Kourouche’s credibility was in issue. This is not the situation in this current judicial review but the comments about practical injustice are pertinent.

100. In Frost, Leeming JA (with Basten JA and Beazley P agreeing) at [36] quoted from InMinister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594, where French CJ and Kiefel J said at [9]:

“Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.”

101. The Court of Appeal in Frost (at [41]-[42] stated that the test for the obligation to afford procedural fairness is framed in terms of the avoidance of practical injustice and at [41]-[42]:

“41 Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that “Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act, in Mckee at [8], Allsop P said that “procedural fairness would require any and all necessary steps to ensure a fair hearing.

42 … This is a not a case where the possibility of the panel's adverse conclusion ought to have taken Ms Kourouche by surprise.”

102. With the Frost test of avoidance of practical injustice in mind, Mr Nicol asserted that the material from Drs Hanson and Khan on its face demonstrated that Mr Nicol was fully medicated, constantly treated and yet that is the antithesis of the Appeal Panel’s attribution, where they say he was in remission. Mr Nicol also submitted that in Frost, while it may well have been a possibility that on the known materials there was a dispute as to the credit of Ms Kourouche and that her version of events may not be accepted, this judicial review of apportionment and the approach to it adopted by the Appeal Panel was never adverted to on the known materials.

103. Finally, Mr Nicol submitted that had it been raised with the parties, there would have been an opportunity to obtain a medico-legal opinion to deal with the question of causal connection and submissions would have been made on that topic.

Submissions of Macquarie University

104. Macquarie University submitted that both parties were alive to the issues that were brought before the AMS and there was a complete set of documents that covered the entire history. At the time of the medical examination by Dr Gertler, Mr Nicol had every opportunity to discuss his circumstances to the extent that they were inconsistent with Macquarie University’s position.

105. Macquarie University also submitted that the requirements of procedural fairness are not to be applied after dissection of each component of the medical assessment reflected in the certificate, treating each as a discrete issue.

106. Macquarie University maintained that procedural fairness does not require the Appeal Panel to disclose that it proposes to increase or decrease a WPI because it has reached a different view to the AMS as to the degree of WPI. Nor does it require the Appeal Panel to disclose in advance for comment its evaluation of the proportion of deduction which is appropriate in respect of pre-existing injury. In support of these propositions, Macquarie University referred to Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 839 (“Crean”) where McClellan CJ at CL stated at [37] to [40]:

“37 The appropriate amount of the deduction for pre-existing injury, if any, was the issue raised with the Appeal Panel. Although a decision-maker must disclose information which might affect the decision which does not come from the applicant (Kioa v West at 587,628) the decision of the Appeal Panel turned upon material known to the applicant. It may be that if the conclusion reached by the Appeal Panel was obscure it should have disclosed its tentative view to the plaintiff: Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Palme (2003) 216 CLR 212 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515. A decision-maker may be obliged to advise of a prospectively adverse conclusion “not obviously open on the known material” or which may not be apparent from “its nature of the terms of the statute under which it is made.” However, a decision-maker “is generally not obliged to invite comment on the evaluation” of a person’s case. (Alphaone (1987) 77 at 591 approved in Palme [22]). Having asked for a review of the Certificate the plaintiff initiated a process by which the Appeal Panel could determine to issue a new certificate which, after consideration of the relevant material, reflected its view of the matter.

38 In Thompson v WorkCover Queensland [2002] QSC 119 the Supreme Court of Queensland rejected a submission that the General Medical Assessment Tribunal denied a claimant procedural fairness by failing to bring to her attention an inclination to find that her symptoms had been exacerbated during her employment but that these symptoms were not related to the employment. Cullinane J held that the very issue which brought the claimant before the Tribunal was whether she had suffered an injury, and that this necessarily involved the issue of whether her employment caused the injury, as required by the statutory definition (at [37]):

“It is settled that a body in the position of the Tribunal is not obliged to give notice of any impression it might have formed of the evidence or of the lines along which it might be thinking so that a party might have the chance to persuade it otherwise.”

39 In my opinion the requirements of procedural fairness are not to be applied after dissection of each component of the medical assessment reflected in the certificate, treating each as a discrete issue. That would be an artificial and unwieldy approach to the medical assessment and contrary to the approach in Alphaone. Such an approach would not be appropriate in the statutory context which requires efficient, effective and timely resolution of workers compensation claims (ss 3(f), 354(1)-(3), 367(1),(a),(b),(c)). The common law requirements must be applied having regard to these statutory requirements.

40 As the first defendant submitted if procedural fairness required the Appeal Panel to disclose to an appellant worker that it proposed to decrease a Whole Person Impairment by reason of its assessment that a higher proportion should be deducted by reason of a pre-existing injury, then it would also require the Appeal Panel to disclose to a respondent employer that it proposed to increase a Whole Person Impairment by reason of its assessment that a smaller proportion should be deducted for a pre-existing injury. However this would encroach upon the thinking and evaluation processes of the Appeal Panel, which according to Alphaone,are not required to be disclosed. The duty of disclosure should be the same whether the Appeal Panel is proposing to make a decision unfavourable or favourable to an appellant worker. Procedural fairness does not require the Appeal Panel to disclose to an appellant worker that it proposes to increase or decrease a Whole Person Impairment because it has reached a view different from the Accredited Medical Specialist as to the degree of Whole Person Impairment. Nor does it require the Appeal Panel to disclose in advance for comment its evaluation of the proportion of deduction which is appropriate in respect of pre-existing injury.”

107. Macquarie University submitted that there was a failure on the part of the AMS to take a correct history of the subsequent psychological injury sustained while Mr Nicol was employed at Cambridge. It was also submitted to the Appeal Panel that there was a failure to make a deduction on the assessment of permanent impairment due to the ongoing effects of the subsequent injury sustained at Cambridge. Therefore according to Macquarie University, these matters were put squarely on the record for consideration by Mr Nicol and whatever Mr Nicol wished to raise he ought to have done so in response. Moreover, Macquarie University asserted that there was no argument put forward in submissions in opposition by Mr Nicol which could have suggested that the AMS should isolate himself to only one set of employment circumstances.

108. Macquarie University also referred to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 where the Court of Appeal stated that an expert report in judicial proceedings must take into account the whole history relevant to the subject matter of the opinion. In other words, according to Macquarie University, the opinion of the expert cannot be said to hold much weight if the whole of the material is not available for consideration. As such, in the present case it would have been impossible for the Appeal Panel to make a sensible and accurate finding without the complete history. In this regard, the AMS and Dr Way made no attempt to take into account the subsequent employment with Cambridge.

Consideration

109. Neither the AMS nor the Appeal Panel accepted the views of Drs White and Roberts who held the view that Mr Nicol’s injury did not have anything to do with his employment at Macquarie University. Some of the medical specialists and general practitioners whose reports were before the AMS (and the Appeal Panel) expressed various opinions as to the effect of Mr Nicol’s subsequent employment at Cambridge upon the injury he suffered at Macquarie University. These medical views have been referred to earlier in this judgment.

110. Both the AMS and the Appeal Panel favoured the reports of Mr Nicol’s treating general practitioner, Dr Hanson, his treating psychiatrist, Dr Khan, and the psychiatrist who took over when Dr Khan retired, Dr Sternhell.

111. The Appeal Panel took issue with the AMS’s understanding of Dr Hanson’s opinions expressed in his report dated 22 December 2008. The AMS merely stated in his reasons “A further doctor’s report of Dr Hanson (22.12.2008) was also noted”.

112. In this report Dr Hanson when asked:

“2. Please confirm a diagnosis according to criteria outlined in DSM-IV, including causation.”

113. Dr Hanson replied:

“Mr Nicol is suffering from a severe Grief Reaction/Adjustment Disorder, which exacerbated his pre-existing diagnosis of major depression due to the work stress related suicide death of his close work colleague and the sudden termination of employment without warning, based on a complaint about the conduct of the employer in relation to his death.

Mr Nicol’s recurrence of previously existing condition met the DSM IV criteria for recurrent episode of Major Depression …”

114. At question 3, Dr Hanson was asked:

“3. Please provide details of Mr Nicol’s pre-existing psychological condition. Please confirm what events have specifically been the cause of the reported exacerbation of this condition and how this is relation to his employment.”

115. Dr Hanson replied:

“I have known Mr Nicol in the capacity of Treating Doctor since April 2005. Mr Nicol first episode of psychological disorder commenced in May 2006. Mr Nicol’s prior medical condition consisted of treatment for hypertension in 2005, which has since been stabilised with medication.

Mr Nicol presented with symptoms consisting of difficultly with sleeping, early morning wakening, anxiety and tearfulness, feelings of hopelessness and worthlessness, anhedonia, irritability, disturbed eating patterns and reduced concentration and memory. He was initially diagnosed as suffering from an adjustment disorder with mixed anxiety and depression, and later this diagnosis evolved into Major Depression with Anxious Features. Treatment during this period consisted of Cognitive Behavioural Therapy (CBT) with Psychiatrist and Treating Specialist, Dr Khan. Mr Nicol was also prescribed medication.

In 2007 he continued weekly sessions for psychotherapy with Dr Khan and was prescribed medication.

By March 2008 his symptoms had resolved and his condition was in remission. He was euthymic [a normal non-depressed, reasonably positive mood] and continued to see Dr Khan and was prescribed medication.”

116. The Appeal Panel regarded it as significant that while the AMS mentioned the report of 22 December 2008, he did not discuss nor refer to the above opinion expressed by Dr Hanson. The Appeal Panel referred to Dr Hanson’s opinion and then stated that Mr Nicol’s prior condition was in remission and that Mr Nicol suffered a recurrence of major depression at Cambridge.

117. The Appeal Panel also stated that the AMS did not consider the question of causation regarding the circumstances of Mr Nicol’s subsequent employment and termination. The Appeal Panel was satisfied that the AMS had made a demonstrable error in finding that there had been no subsequent injury, nor considering that issue in his reasons. The Appeal Panel was therefore satisfied the AMS’s reasons did not attain the minimum level as discussed in Vegan.

118. I accept that in accordance with Crean procedural fairness does not require there to be disclosure of the intention on the part of the Appeal Panel to increase or decrease a WPI finding if the finding in regards to WPI is to be different from that of the AMS. Additionally, there is no requirement for an Appeal Panel to disclose in advance for comment its evaluation of the proportion for deduction which is appropriate in respect of subsequent injury.

119. It is important to recognise that the test set out in Frost, is framed in terms of the “avoidance of practical injustice”. This test stipulates that procedural fairness requires the decision maker to take any and all necessary steps to ensure a fair hearing. It is fair to say that both parties addressed Mr Nicol’s injury or injuries at Macquarie University and subsequently at Cambridge in the submissions made to the Appeal Panel. Mr Nicol was re-examined by a member of the Appeal Panel. If Mr Nicol wished to obtain a further medical legal report on causation to put before the Appeal Panel, he could have requested an opportunity to obtain one. He did not do so.

120. In these circumstances, it is my view that the Appeal Panel afforded Mr Nicol procedural fairness.

Causation – Ground 2

Submissions of Mr Nicol

121. Mr Nicol argued that the Appeal Panel misapplied its statutory task in respect of causation and thereby constructively failed to exercise its jurisdiction. Mr Nicol referred to the Appeal Panel’s reasons at [79] where it stated:

“79 As at June 2007, the claimant’s symptoms had largely resolved. The new injury of November 2008 was the event that caused the symptoms to recur. Accordingly we are satisfied that the appellant employer was responsible for the claimant’s level of functioning as at June 2007. The subsequent injury at Cambridge and other subsequent stressors … have contributed to his present level of dysfunction.”

122. According to Mr Nicol, there was no factual or legal basis to treat the situation as having been causally severed, yet the Appeal Panel’s approach to apportionment treated the situation as causally unconnected.

123. There was no evidence that Mr Nicol had recovered from the injury that he had sustained in the course of his employment with Macquarie University in the sense that the injury had completely resolved and ceased to be an injury, prior to him commencing work with Cambridge. At the highest, there was a suggestion by Mr Nicol’s general practitioner that his condition was in remission prior to the incidents that occurred in November 2008. This suggestion had to be viewed in the temporal circumstances that Mr Nicol was first certified as not being capable of working on 11 May 2006, and commenced in the role with Cambridge on 23 October 2006. Further, any suggestion of remission had to be viewed in the setting of Mr Nicol’s heavy consumption of medication, as noted by the AMS which plainly showed that there was no remission, but rather management by medication. Mr Nicol’s condition deteriorated after he commenced employment with Cambridge. There was no evidence that Mr Nicol had sustained a new, separate or independent psychiatric or psychological injury as a result of his work with Cambridge, or as a result of any other aspects of his life. Even if there had been a remission, that did not mean there was a new, separate or independent psychiatric or psychological injury as a result of his work with Cambridge, or as a result of any other aspects of his life.

124. This language of a new injury causing a recurrence of symptoms signals errors, as legally and factually a new injury does not cause symptoms of an old injury to recur. In this case, all the submitted medico-legal opinions accepted a causal relationship beyond the time of employment with Macquarie University. However the approach of the Appeal Panel is to artificially separate causation at the time of Mr Nicol’s termination of employment by Macquarie University. This reveals the practical explanation as to why the Appeal Panel mistakenly approached the recurrence of symptoms from an old injury as being causally related to a new injury.

125. Mr Nicol submitted that once employment is a substantial contributing factor to the injury, which was not in dispute in relation to the employment at Macquarie University, matters of causal connection between the injury and symptoms and disabilities, including deterioration are legally and factually controlled by whether there has been a novus actus sufficient to break the causal connection in a situation where there is otherwise a causal connection.

126. On this topic, both parties referred to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, (“Kooragang”), where Kirby P (with Sheller and Powell JJA agreeing) stated at [461G], [462E] and [463]-[464]:

“461G From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.

462E Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.

463-464 The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use the phrase “results from” is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of a disease), is a question of fact to be determined on the basis of evidence, including where applicable expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

127. It should be noted that the satisfactory formula in these current proceedings is different to that referred to by Kirby P in Kooragang. These proceedings are governed by s 9A(1) of the Workers Compensation Act.

128. Mr Nicol also referred to Roger v De Gelder [2015] NSWCA 211 where Gleeson JA (with Macfarlan and Leeming JJA agreeing) stated at [107]-[110]:

“107 The Panel’s reasons do not address Mr De Gelder’s evidence including his description of the pain as “severe”, or its location, including “down through my thoracic”, or that he was experiencing constant pain in his thoracic spine and was “in agony” the following day. Nor did the reasons address the evidence given by Ms Young and Mr Young corroborating Mr De Gelder’s complaint of thoracic pain immediately following and continuing after the accident.

108 The Panel’s reasons disclose that it did not engage with the evidence of a complaint of the onset of thoracic pain at the time of and continuing after the motor accident. This was a matter of importance which related to its determination of a non-medical factual question. It is not to the point that the function of the Panel is to form and give its own opinion on the medical dispute referred to it by applying its own medical experience and its own medical expertise: Wingfoot Australia Pty Ltd v Kocak at [47]. Nor is it to the point that s 61(9), which is made applicable by s 63(6), only obliged the Panel to set out in its certificate the reasons for any finding of any matter certified in the certificate.

109 Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel’s decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ).

110 For the above reasons, which differ somewhat from those of the primary judge, I agree that the Panel’s certificate is vitiated by jurisdictional error. The challenge by Mr Rodger to the primary judge’s decision setting aside the Panel’s certificate must fail. Ground 1 has not been made out.”

129. Mr Nicol submitted that there was no probative evidence that permitted a negative causation conclusion. Rather, this was an orthodox situation whereby there was a causally connected progressive deterioration of symptoms and disabilities when he pursued other life activities such as employment.

130. Mr Nicol further submitted that the Appeal Panel’s approach was contrary to a correct application of causation. He referred to the Appeal Panel’s statement in support of this proposition at paragraphs [82]-[83] that have been reproduced earlier this judgment at [78].

131. Mr Nicol submitted that the practical reality was that he had not recovered, rather he was medicated and that such a scenario could never amount to a cessation of the relevant legal and factual causation connection. However, the Appeal Panel treated it as though it did.

Submissions of Macquarie University

132. Macquarie University referred to Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 in order to demonstrate the importance of considering that the injury which Mr Nicol sustained while employed at Cambridge was a separate event. At [36], I stated that:

“The Appeal Panel was required to determine the extent of any permanent impairment that had resulted from the work injury of 28 January 2009. The correct question to be answered by the Medical Appeal Panel was whether loss of vision in the right eye because of the complications arising from the cataract surgery, was caused or materially contributed to by the accident.”

133. The appeal in Bindah v Carter Holt Harvey Wood Products [2014] NSWCA 264 was dismissed.

134. Mr Nicol’s statement dated 24 May 2016 dealt with the causal pathway between Macquarie University and subsequent matters:

“…Macquarie University ended my employment because the protagonist blocked my return to employment. As a consequence Macquarie University terminated me in October 2006. I then obtained a job with Cambridge Insurance in 23 October 2006 as a case manager in workers’ compensation. However again I still had depression as a consequence of the bullying from Macquarie University but because my weekly benefits were cut I was forced to go back to work even though I was not very well from a psychological perspective. Really the problems there with Cambridge emanated from the fact that I had to take so much sick leave because I was not psychologically well and because I had so much sick leaves, some of them unpaid, Cambridge really tried to block me going back to work. An incident there when a fellow case worker hung (sic) himself and I expressed to Cambridge Management my concerns and issues in the way they handled the problem. They took umbrage to my suggestions and they terminated me. They had received a Work Cover certificate from Dr Hanson indicating I had a work cover claim but notwithstanding that they terminated my employment some several weeks prior to Christmas of 2008.”

135. Macquarie University referred to an additional statement of Mr Nicol dated 17 December 2008 which was obtained for the purposes of the claim which he made in respect of his employment with Cambridge. Counsel for Macquarie University submitted that this statement is reflective of a new set of psychiatric circumstances, as Mr Nicol himself recorded in a statement that:

“7. The claim that I had with Macquarie was declined and an appeal is in the process of going through the commission at the moment.

8. When I began with Cambridge it was around 22 October 2006. My depression from the time that I worked for Macquarie was largely resolved and I was not feeling stressed or depressed. My employment with Macquarie was terminated prior to the time that I went to Cambridge. The depression had been constant for a couple of months to the point where I was unable to leave the apartment and I stayed at home after that.”

…”

136. It is fair to say these two statements are inconsistent. In his first statement, Mr Nicol says that he still had depression as a consequence of his bullying at Macquarie University. Whereas in his second statement, Mr Nicol says that his depression had largely resolved and he was not feeling stressed or depressed when he began work at Cambridge.

137. Macquarie University submitted that Dr Hanson’s report dated 22 December 2008 indicated that Mr Nicol’s condition was normal. Furthermore, with the fact that Mr Nicol had himself made a separate claim in respect of the Cambridge employment where there was a different set of circumstances, demonstrates a different causal pathway.

138. Macquarie University also submitted that there was an aggravation, acceleration, exacerbation or deterioration of a pre-existing disease of major depression. According to Macquarie University, the Appeal Panel properly stated in its reasons that it was satisfied that the incidents at Cambridge caused a fresh injury in the form of the recurrence of the major depression which, at that time, was in remission.

139. Macquarie University maintained that the psychological condition maintained by Mr Nicol was a disease pursuant to s 4 of the WIM Act. As such, the injury at Cambridge was constituted by an aggravation of the pre-existing condition. That is, there was a failure of an area of the body to cope with repeated stress imposed on it: see Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253.

Consideration

140. “Injury” is defined in s 4(a) of the Workers Compensation Act as a “personal injury arising out of or in the course of employment”. Section 9A(1) further provides that the causation of an injury is established where the employment is a substantial contributing factor to the injury. The injury which was to be assessed by the AMS and the Appeal Panel in the present case was the WPI caused by Mr Nicol’s physiological/psychiatric injury disorder that allegedly occurred in October 2006. In making this assessment, it is therefore not only necessary that the Appeal Panel have considered causation, but that it also considered whether employment was a substantially contributing factor to the injury. Once causation is established, there is a causal connection between the injuries, symptoms and disabilities, including any deterioration, except where the causative chain is broken.

141. While care should be taken by the Court to avoid unduly imposing legalise into the assessment of workplace injuries, causation remains an essential element in establishing liability under the Workers Compensation Act and, in particular, in assessing whether the employment was a substantial contributing factor per s 9A(1) of the Act.

140. There are several alternative outcomes in regards to causation where a latter injury aggravates or contributes to a prior injury. In Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 (“Aboushadi”), the Court of Appeal considered the relevant principles where a second accident caused greater damage due to the result of an earlier accident. Mason P (with whom Meagher JA and Barr J agreed) stated at [22]:

“22 His Honour correctly applied Fishlock v Plumber, a case which (Others cited) was cited by Malcolm CJ in State Insurance Commission v Oakley (1990) Aus Tort Reports 81-003 at 67 to be authority for the first two of the following propositions:

(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;

(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and

(3) where the further injury results from a subsequent accident which would have occurred and the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as casually independent of the first.”

143. It is not disputed that Mr Nicol first suffered a psychiatric injury when he was employed by Macquarie University where his period of employment commenced in January 2005. The Appeal Panel referred to a new injury in November 2008 as the event which caused Mr Nicol’s symptoms to recur at [79], before going on to state that the subsequent injury at Cambridge and other subsequent stressors have contributed to his present level of dysfunction.

144. I accept that the decision on causation of Mr Nicol’s depression is essentially a medical opinion, but the Appeal Panel’s decision must nevertheless be made in accordance with the statutory requirements, including s 9A(1) of the Workers Compensation Act. The Appeal Panel did not specifically set out the statutory requirements of s 9A(1). The language used by the Appeal Panel also indicated that the new injury caused Mr Nicol’s symptoms to recur, yet made no reference to any novus actus that broke the chain of causation from Mr Nicol’s earlier injury sustained at Macquarie University.

145. The characterisation of the new injury as causing symptoms to recur suggests that the new injury and prior injury are linked. Based upon the decision of Aboushadi (which I have set out above), the present circumstances appear to fall into the second category. In other words, the further injury which resulted at Cambridge would have occurred even if Mr Nicol had been in normal health, but the damage sustained was greater because it was an aggravation of the earlier injury from Macquarie University. It is this additional damage resulting from the aggravated injury that remains causally linked to the first injury at Macquarie University. While Macquarie University submitted that the aggravation of an earlier injury does fall within the scope of the statutory definition of “injury” under s 4 of the Workers Compensation Act, it does not follow that the aggravation alone results in a new injury unless the causal chain has been broken.

146. The Appeal Panel also made reference to Mr Nicol’s improvement in condition as constituting a remission of the first injury. The Appeal Panel did not refer to Mr Nicol being on any medication at that time. Putting to one side the inconsistent statements of Mr Nicol regarding his depression, this improvement does not constitute the required novus actus to snap the causative connection as set out in Kooragang.

147. In my view, the Appeal Panel’s reasoning on causation discloses that it misapplied its statutory task and thereby constructively failed to exercise its jurisdiction. The Appeal Panel’s decision is vitiated by jurisdiction error.

148. It is now not necessary to consider the judicial ground of review concerning apportionment and the application of PIRS (ground 3). Had the Appeal Panel not erred in its finding on causation and correctly that the Cambridge injury was a new injury, it would have followed that the assessment of WPI using PIRS would have been correct and the deductions would have been made in accordance with its determination.

149. Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis.

The Court declares that:

(1)   The decision of the Appeal Panel in matter number 2738/17 made on 26 May 2017 is vitiated by jurisdictional error.

The Court makes an order:

(2)   In the nature of certiorari removing into the Court the decision of the Appeal Panel in matter number made on 26 May 2017 and quashing that decision.

The Court further orders that:

(3)   Matter number 2738/17 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law.

(4)   The first defendant is to pay the plaintiff’s costs on an ordinary basis.

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Decision last updated: 27 April 2018