Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel)

[2020] NSWSC 781

Supreme Court

New South Wales

Medium Neutral Citation:

Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781

Hearing dates:

18 June 2020

Decision date:

22 June 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Set aside the decision of the third defendant made on 5 November 2019.

 

(2)   Remit the matter to the second defendant to be determined by an appeal panel differently constituted.

 (3)   Order the first defendant to pay the plaintiff’s costs of the proceedings.

Catchwords:

ADMINISTRATIVE LAW — Judicial review — Workers Compensation — Guidelines issued under Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 376 — where plaintiff sought adjustment under cl 1.32 of Guidelines — whether Appeal Panel gave adequate reasons explaining application of cl 1.32 — whether error of law on the face of the record

Legislation Cited:

Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.10
Workers Compensation Act 1987 (NSW), ss 4, 9, 65A, 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 78, 313–314, 319, 321–325, 327–328, 331, 376

Cases Cited:

Ballas v Department of Education (State of NSW) [2020] NSWCA 86
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Wingfoot (Australia) Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed)
State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016), ch 1
State Insurance Regulatory Authority, Workers Compensation Medical Dispute Assessment Guidelines (21 December 2018), ch 5

Category:

Principal judgment

Parties:

Kaitlyn Peachey (Plaintiff)
Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) (First Defendant)
Workers Compensation Commission of New South Wales (Second Defendant)
The Medical Appeal Panel of the Workers
Compensation Commission of NSW (Third Defendant)

Representation:

Counsel:
E Grotte (Plaintiff)
A Combe (First Defendant)
Submitting appearances (Second and Third Defendants)

  Solicitors:
Santone Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)
Crown Solicitor for NSW (Second and Third Defendants)

File Number(s):

2020/32449

Judgment

Introduction

1. By summons filed on 31 January 2020, the plaintiff, Kaitlyn Peachey (the Claimant), seeks relief under s 69 of the Supreme Court Act 1970 (NSW) against the decision made on 5 November 2019 by the third defendant, the Medical Appeal Panel of the Workers Compensation Commission of NSW (the Appeal Panel).

2. The first defendant, Bildom Pty Ltd (the Employer) is the only active contradictor. The second defendant, the Workers Compensation Commission of NSW (the Commission), and the Appeal Panel have filed submitting appearances.

3. All references to legislation in these reasons are, unless otherwise stated, references to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act).

4. It is accepted that the summons was filed within the time provided in Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10 as it was filed within 3 months of the material date, being the date on which the Appeal Panel’s decision was made.

The grounds

5. The Claimant relies on the following grounds:

“1.    The third defendant erred in law in finding that the Approved Medical Specialist had correctly applied clause 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the applicable guidelines) and that no adjustment for treatment should be made.

2.    The third defendant erred in law by impermissibly filling in the gaps in the path of reasoning by reference to an assumption that the decision of the Approved Medical Specialist was made according to law in respect of the application of clause 1.32 of the applicable guidelines by the Approved Medical Specialist.

3.    The third defendant failed to correctly apply clause 1.32 of the applicable guidelines by failing to consider all relevant considerations such as the plaintiff's ability to return to some employment.

4.    The third defendant failed to give any, or any adequate, reasons for the inference that it drew, or the assumption that it made, that the Approved Medical Specialist was of the opinion that no adjustment should be made for the effect of treatment in accordance with clause 1.32 of the applicable guidelines and for the methodology it adopted in respect of the application of clause 1.32.”

6. Before addressing the grounds, I propose to summarise the relevant facts and the legislative framework.

The relevant statutory framework

The Act and the 1987 Act

7. Pursuant to s 65A(3) of the Workers Compensation Act 1987 (NSW) (the 1987 Act), a claimant can only be awarded compensation for permanent impairment in respect of a primary psychological or psychiatric injury if the assessed Whole Person Impairment (WPI) is at least 15%. A claimant cannot commence court proceedings for the recovery of work injury damages unless the degree of WPI has been assessed by an Approved Medical Specialist (AMS) to be at least 15%: ss 313 and 314 of the Act.

8. A dispute between a claimant and an employer as to the degree of permanent impairment is a “medical dispute” within the meaning of s 319 in Part 7 of the Act. The Registrar may refer a medical dispute to an AMS: s 321. The assessment of the degree of permanent impairment is to be made in accordance with the Guidelines: s 322(1).

9. Section 323 relevantly provides for a deduction for a pre-existing condition or abnormality as follows:

“(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%).

…”

10. An AMS may call for the production of medical records and other information and require a claimant to submit himself or herself for examination: s 324(1). An AMS to whom a medical dispute has been referred is to give a medical assessment certificate as to the matters referred for assessment: s 325(1). The certificate is to certify the assessment, the reasons for assessment and the facts on which the assessment is based: s 325(2).

11. A party may appeal against a medical assessment on specified grounds: s 327. The grounds include that the assessment was based on incorrect criteria (s 327(3)(c)) and that the certificate contains a “demonstrable error” (s 327(3)(d)). The appeal is made by application to the Registrar and is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions, at least one of the specified grounds of appeal is made out: s 327(4). An appeal against a medical assessment is to be heard by an Appeal Panel constituted by two medical practitioners and one arbitrator: s 328(1). It is to be by review, but is limited to the grounds of appeal: s 328(2). The Workers Compensation Guidelines can provide for the procedure on appeal: s 328(2). The Appeal Panel may confirm the AMS’s certificate or may revoke it and issue a new certificate: s 328(5).

12. Section 331 provides:

“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.”

13. Section 376(1) relevantly provides:

“(1)  The Authority may issue guidelines with respect to the following—

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

…

(c)     such other matters as a provision of the Workers Compensation Acts provides may be the subject of Workers Compensation Guidelines.”

14. Guidelines issued pursuant to s 376(1) have the effect of delegated legislation: Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [97] (Bell P and Payne JA).

Relevant guidelines

NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment

15. The NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines) were made pursuant to s 376 of the Act.

16. Clause 1.1 of the Guidelines says that they were made under s 376 of the Act and that they adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) but that where there is a deviation, the Guidelines are to prevail. The Guidelines provide exclusively for mental or behavioural disorders, and displace AMA5 entirely on this topic: cl 1.11.

17. The Guidelines relevantly provide for an adjustment for the effects of treatment as follows:

“Adjustment for the effects of treatment

…

1.32    Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.

…”

18. Chapter 11 of the Guidelines makes provision for the evaluation of permanent impairment with respect to psychiatric and psychological disorders. Of present relevance, it provides:

“Diagnosis

…

11.6    It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI).

Permanent impairment

11.7    A psychiatric disorder is permanent if, in your clinical opinion, it is likely to continue indefinitely. Regard should be given to:

• the duration of impairment

• the likelihood of improvement in the injured worker’s condition

• whether the injured worker has undertaken reasonable rehabilitative treatment

• any other relevant matters.

Effects of treatment

11.8    Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment.”

19. Clause 11.11 sets out the psychiatric impairment rating scale (PIRS) and refers to a number of categories, including employability.

Workers Compensation Medical Dispute Assessment Guidelines

20. The Workers Compensation Medical Dispute Assessment Guidelines relevantly provide:

“5.17    The MAP [Medical Appeal Panel] may adopt any of the following procedures in accordance with the needs of the individual case:

5.17.1    ‘on-the-papers’ review

5.17.2    further medical examination by an approved medical specialist on the appeal panel

5.17.3    assessment hearing.

5.18    The MAP decides which of the procedures is to be adopted.

5.19    The decision of the appeal panel is to be informed by its assessment of the needs of the particular case.”

21. It was common ground that the Appeal Panel had chosen to adopt the procedure of an ‘on the papers’ review. The Claimant did not challenge this decision.

The facts

22. During the course of her employment by the Employer as a chef, the Claimant suffered psychological injury over the period 1 March 2016 to 16 September 2016. It was common ground that the “injury” for the purposes of ss 4 and 9 of the 1987 Act was a psychological or psychiatric injury.

23. She subsequently made a claim for workers compensation which was accepted by the Employer, which made payments of weekly benefits and medical expenses. On 8 February 2018 the Employer issued a notice under s 74 of the Act (which was then in force and applicable), denying ongoing liability for psychological injury.

24. On 7 November 2018 the Claimant served a claim for WPI pursuant to s 66 of the 1987 Act on her Employer. In support of her claim, she relied on the report of Dr J Baker, a consultant psychiatrist, dated 2 September 2018. He diagnosed an exacerbation of Major Depressive Disorder and assessed the Claimant’s WPI at 17% (calculated by deducting 2%, being the pre-existing WPI, from 19%, being the current % WPI).

25. On 8 March 2019 the Employer served a notice pursuant to s 78 of the Act disputing the claim. It relied on two medico-legal reports of Dr R Wotton, consultant psychiatrist, dated 13 December 2017 and 3 January 2018. Dr Wotton did not consider that the Claimant had suffered any work-related condition. He considered her to have a pre-existing Mood Disorder well before the work-related incidents. He considered her to be markedly impaired and fragile, significantly depressed and anxious and regarded the impairment to be permanent. At the time of her examination by Dr Wotton, the Claimant was undergoing rehabilitative counselling pursuant to a mental health plan. Dr Wotton did not assess her % WPI.

26. On 24 April 2019 the Claimant lodged an application to resolve a dispute regarding the claims for WPI and weekly benefits. The Employer filed a reply on 15 May 2019. The claim with respect to weekly benefits was resolved and the claim for WPI was designated to be referred for assessment by an AMS.

27. On 30 May 2019, the Commission referred the Claimant’s claim for WPI to Professor Nick Glozier, an AMS.

28. On 31 July 2019 the AMS carried out a clinical examination of the Claimant. On 7 August 2019, the Commission issued the AMS’s certificate which assessed the Claimant’s WPI at 13%. It was common ground that the finding of 13.5% (15% less 10% for her pre-existing impairment) ought to have been rounded up to 14% instead of being rounded down to 13%.

29. The AMS recorded a history which included the following:

“Recently she has been working for a cleaning company, 30 hours a week. She finds the older female staff unthreatening. There was a problem two days prior to the incident where in a work meeting there was some hostility between two other women. She said this led to a panic attack. The boss was very understanding and gave her the following day off.”

30. The reasons given by the AMS included of present relevance:

“8   EVALUATION OF PERMANENT IMPAIRMENT

…

b. Have all body parts stabilized/reached maximum medical improvement?

Yes. Although her treatment has probably not been optimal, she has been compliant with antidepressant medication, engaged with psychotherapy and rehabilitation for many months with only a recent improvement in her symptoms of functioning as she has obtained employment. However it is unlikely, given her ongoing symptomatology, that she will improve by more than 3% in the subsequent 12-18 months.”

31. As referred to above, the AMS made a one-tenth deduction (1.5%, being 10% of 15%) for the pre-existing condition pursuant to s 323(2) of the Act.

32. Both parties appealed to the Appeal Panel against the certificate. For present purposes, it is only necessary to address a single ground of the Claimant’s appeal to the Appeal Panel: that the AMS failed to properly apply cll 1.31 and/or 1.32 of the Guidelines. The Claimant relied on two subparagraphs of s 327(3) of the Act, namely: the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and it contained a demonstrable error (s 327(3)(d)).

33. The Claimant argued in her submissions to the Appeal Panel that the AMS ought to have considered and applied cll 1.31 and 1.32 because the evidence showed that there had been improvement in her condition such that she was able to return to work. On this basis, the Claimant contended that there ought to have been some adjustment in accordance with cl 1.32, which would have resulted in a WPI score of an additional 2 or 3%. The adjustment, if made, would have been sufficient to enable her to reach the threshold of 15% under s 65A of the 1987 Act (referred to above).

34. In response the Employer had submitted to the Appeal Panel that, although the Claimant had been prescribed with anti-depressant medication, she had only experienced an improvement in her symptomatology when she went back to work. On this basis, the Employer contended that the AMS was correct not to make an allowance for the effects of treatment.

35. On 5 November 2019 the Commission issued the statement of reasons for the decision of the Appeal Panel, which assessed the Claimant’s WPI at 14%, which was arrived at by deducting 10% from 15% (being the assessed WPI) and rounding the WPI from 13.5% to 14% as required by the Guidelines.

36. The Appeal Panel confirmed that it had before it all the documents which were sent to the AMS and that it had taken them into account in its determination.

37. Of present relevance the Appeal Panel said, in its reasons:

“29.    The AMS, on page 6 of the MAC, stated that there has been improvement and in particular:

‘although her treatment has probably not been optimal, she has been compliant with antidepressant medication, engaged with psychotherapy and rehabilitation for many months with only a recent improvement in her symptoms of functioning as she has obtained employment.’

30.    The applicant submitted that due to the extent of the treatment and the improvement, including enabling her to return to some form of employment, there should be a considerable score for adjustment of 2% or 3%.

31.    The Appeal Panel accepted that the AMS did not specifically refer to the question of whether there should be an adjustment for the effect of treatment in the MAC. Obviously, the AMS made no adjustment for the effect of treatment and it can be inferred that the AMS was of the opinion that no adjustment should be made. Further, for the reasons set out below, the Appeal Panel reached the view that that no adjustment should be made for the effects of treatment.

32.    The Appeal Panel noted according to the Guidelines that there needed to be an apparent substantial or total elimination of the claimant’s permanent impairment for an assessor to increase the percentage of WPI. The AMS noted that the applicant’s condition had improved in 2019. The AMS assessed the applicant as having 15% WPI and then deducted one tenth for a pre-existing condition. It appears that Dr Baker assessed 17% WPI in his report of 2 September 2018, as that was the claim made by the applicant in Part 5.6 of the Application to Resolve a Dispute.

33.    The Appeal Panel was not satisfied that the difference between the assessments of the AMS and Dr Baker demonstrated that there had been an apparent substantial or total elimination of the applicant’s permanent impairment as a result of long term treatment. In those circumstances, the Appeal Panel reached the view that no adjustment should be made for the effects of treatment.”

Consideration

38. The four grounds relied on by the Claimant are related in that each concerns the application of cl 1.32 of the Guidelines, either by the AMS or by the Appeal Panel. The decision of the Appeal Panel is the only operative decision. Accordingly, the decision of the AMS is only relevant in so far as it has been adopted, or otherwise addressed, by the Appeal Panel.

The parties’ submissions

39. The Claimant, for whom Ms Grotte appeared, contended that the AMS and, in turn, the Appeal Panel were bound to apply cl 1.32 and that this required consideration of each of the following matters:

1. whether there has been long-term treatment;

2. if so, whether the treatment has been effective;

3. whether there has been either a substantial or total elimination of the claimant’s permanent impairment; and

4. whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.

40. The Claimant accepted that it could be inferred from the Appeal Panel’s reasons that it considered there to have been long term treatment which had been effective (thereby answering questions (1) and (2) above). However, she contended that the Appeal Panel was in error in failing to adequately address the remaining questions, (3) and (4).

41. The Claimant contended that the Appeal Panel approached the question whether cl 1.32 ought be applied by examining the extent of any difference between the assessments conducted by Dr Baker and the AMS and that this constituted an error which would attract this Court’s intervention under s 69 of the Supreme Court Act.

42. The Claimant submitted that the Appeal Panel was required to give reasons for its decision and that it failed to expose its path of reasoning: Wingfoot (Australia) Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [55]. She submitted that the Appeal Panel did not explain why there was no comparison undertaken by it of the Claimant’s condition prior to and after treatment, which she contended was required by the wording of cl 1.32.

43. Further, the Claimant contended that the Appeal Panel failed to apply cl 1.32 because it gave no effect to the word “substantial”, which qualified the noun “elimination” and that it was in error in requiring “total” elimination before countenancing an allowance under cl 1.32. She argued that the Appeal Panel did not address the question whether she was likely to revert to the original degree of impairment if the treatment was withdrawn and that cl 1.32 required this question to be answered. Ms Grotte contended that cl 2.5g of AMA5 shed light on the meaning of cl 1.32. The relevant passage relied on is as follows:

“2.5g Adjustments for Effects of Treatment of Lack of Treatment

In certain instances, the treatment of an illness may result in apparently total remission of the person’s signs and symptoms. Examples include the treatment of hyperthyroidism with levothyroxine and the treatment of type 1 diabetes mellitus with insulin. Yet it is debatable whether, with treatment, the patient has actually regained the previous status of normal good health. In these instances the physician may choose to increase the impairment estimate by a small percentage (eg, 1% to 3%).”

44. Further, and in the alternative, Ms Grotte submitted that, if a comparison between assessments were appropriate, the Appeal Panel was required to explain why it had chosen to compare Dr Baker’s assessment with the assessment by the AMS and to disregard Dr Wotton’s findings and opinion for the purposes of the comparative exercise.

45. Mr Combe, who appeared on behalf of the Employer, submitted that the AMS had properly applied cl 1.32 but that, in any event, the Appeal Panel made a determination itself that cll 1.31 and 1.32 applied and decided that no adjustment ought be made. The Employer emphasised the word “apparent” which precedes the words “substantial or total elimination” in cl 1.32. The Employer submitted that the Appeal Panel did what it was required to do: namely, compare the Claimant’s permanent impairment before and after treatment. Mr Combe submitted that the only figure for % WPI available to the Appeal Panel for pre-treatment was Dr Baker’s assessment and the only figures for % WPI with treatment was the assessment conducted by the AMS. Mr Combe submitted that no explanation was required because the comparison between the two figures was exactly what cl 1.32 required be done in any event.

46. He submitted that Dr Wotton’s opinion was irrelevant because he had opined solely on the Claimant’s capacity for work and had not undertaken an assessment of her WPI. Further, Dr Wotton had not accepted that there had been any work-related injury but was of the view that the Claimant’s presentation was wholly explained by her underlying pre-existing condition.

47. Mr Combe accepted that the effect of his submission was that cl 1.32 ought be read as if the words highlighted in bold had been inserted into its text as follows:

“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment judged by the respective % scores for WPI before and after treatment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%.”

48. Further, the Employer submitted that relief ought be declined on discretionary grounds as the evidence plainly did not warrant any adjustment in any event.

The Appeal Panel’s obligations and whether it met them

49. The Appeal Panel had an obligation to set out its path of reasoning in sufficient detail to expose whether it had complied with the law: Wingfoot at [55]; see also Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (Vegan) at [121]-[122] (Basten JA, Handley and McColl JJA agreeing). This obligation meant that, in the present case, it had to explain why it considered that no adjustment under cl 1.32 of the Guidelines was warranted.

50. The Appeal Panel inferred that the AMS had decided that no adjustment was warranted under cl 1.32 of the Guidelines. I do not consider that this conclusion was available to the Appeal Panel, having regard to the reasons of the AMS which were insufficient to record that he had considered cl 1.32 at all. Although the reasons of the AMS are entitled to a beneficial construction, this does not warrant an assumption being made that he addressed the vital issue of cl 1.32 of the Guidelines and decided no adjustment was warranted. The AMS’s failure to mention cl 1.32 is consistent with his having overlooked it: SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J). It follows that grounds 1 and 2 have been made out.

51. However, I am not persuaded that anything turns on the Appeal Panel’s incorrect conclusion in this respect since the Appeal Panel’s reasons are sufficient to record that it considered the question of whether an adjustment was warranted under cl 1.32 for itself in any event.

52. Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause and do not consider that resort to AMA5, cl 2.5g is either necessary or of assistance.

53. Clause 1.32 does not expressly require or authorise a comparison between the respective % WPI scores at two particular times. Nor does it expressly contemplate that there needs to be a post-injury pre-treatment WPI score for the purposes of undertaking the necessary comparison. The Appeal Panel saw fit to perform the evaluative exercise required by cl 1.32 of the Guidelines by comparing the WPI score of 17% given by Dr Baker on 2 September 2018 and the WPI score given by the AMS in the certificate dated 17 August 2019 as a consequence of his examination of the Claimant on 31 July 2019. It did not explain why it considered that this comparison would fulfil the requirements of cl 1.32. Nor did it explain why it considered that this comparison would indicate the improvement as a consequence of treatment or identify the treatment said to have been effective. The comparison between the two figures seems to have been the only basis on which the Appeal Panel considered that the change was not substantial. There does not appear to have been any evaluative assessment at all.

54. In order to determine whether the Appeal Panel’s approach disclosed an error of law on the face of the record or constituted a jurisdictional error, it is necessary to construe cl 1.32 itself to determine what it requires. However, before turning to cl 1.32, it is important to have regard to the 1987 Act and the Act to ascertain what is meant by “permanent impairment” and whether it can be distinguished from the concept of “degree of permanent impairment”, a phrase which is also used in cl 1.32. It is to be noted that the terms have not been defined in the legislation. However, there is a difference between them. It was authoritatively held in Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 (Hunter Quarries) that the question of whether a worker has suffered permanent impairment is an antecedent question which arises prior to the question of the degree of that permanent impairment: [67] (Payne JA, Gleeson JA and Sackville AJA agreeing).

55. Further, it has been decided that whether impairment meets the description of “permanent impairment” always involves matters of fact and degree: Hunter Quarries at [73].

56. The comparison required by cl 1.32 would appear to be both qualitative and quantitative. There must be effective long term treatment which results in an “apparently substantial or total” elimination of the original permanent impairment. The fact that an adjustment of either 1%, 2% or 3% is available as a matter of discretion would tend to suggest that there is a range between substantial and total which would permit the selection of one of those three figures. If cl 1.32 had been intended to be satisfied by a mere mathematical comparison of assessments of % WPI at different times (one absent such treatment and the other when treatment had had its effect), one would have expected the draftsperson to state that this was all that was required. Moreover, if the comparison required was merely between WPI percentages, it could be expected that the adjectives “substantial” and “total” would be defined numerically rather than by references to adjectives which would appear to warrant an evaluative, qualitative assessment.

57. In order to address cl 1.32, the Appeal Panel was obliged to consider and record in its reasons whether there has been long-term treatment and if so, what the treatment comprised and whether it has been effective to result in either a substantial or total elimination of the original permanent impairment. If the answers to these questions are in the affirmative, the Appeal Panel is also obliged to consider and decide whether, if treatment is withdrawn, the worker is likely to revert to the original degree of impairment. This analysis does not amount to a gloss on cl 1.32; it is merely a summary of what is required by its wording. The approach taken by the Appeal Panel as disclosed by its reasons was insufficient to demonstrate that it had addressed that which was required to determine whether an adjustment under cl 1.32 was warranted. This constitutes an error of law on the face of the record: Wingfoot at [55]; Vegan at [130].

58. This is not to say that the Appeal Panel was not entitled to have regard to Dr Baker’s assessment of WPI and the AMS’s assessment of % WPI for the purposes of cl 1.32. However, it was required to explain why it considered that this differential was sufficient to fulfil its obligation to address the question of an adjustment under cl 1.32. It failed to do so. While the Appeal Panel disclosed what it had done (subtracted one figure from the other and decided that the difference was not substantial), it did not reveal why it had done so and on what basis this was sufficient for it to come to a conclusion that no adjustment was warranted under cl 1.32. Ground 4 has been made out in so far as it challenges the Appeal Panel’s reasons. It is not necessary to determine ground 3 since I am persuaded that the Appeal Panel’s decision should be set aside for the reasons given below.

59. In these circumstances, it is not necessary to address Ms Grotte’s alternative submission that the Appeal Panel ought to have had regard to Dr Wotton’s opinion or the parties’ submissions about the meaning of “substantial” and “apparent” in cl 1.32.

Relief

60. The Claimant sought that the decision of the Appeal Panel be set aside. In the course of the hearing, Ms Grotte sought to amend the summons to add a claim that the decision of the AMS also be set aside. Mr Combe opposed the amendment. He submitted that one of the purposes of an appeal to the Appeal Panel from an AMS was to correct demonstrable error and that there was no reason or warrant for this Court to set aside the AMS’s decision. Although I am not persuaded that there would be any prejudice to the Employer in allowing the amendment to the summons to add the further claim for relief at this late stage, I do not consider that such relief is appropriate in the present case in any event and, for that reason, I refuse the amendment. Further, I note that the AMS is not a party to the proceedings.

61. If an AMS failed to make a determination (as I consider occurred in the present case), the remedy for the parties is to appeal to the Appeal Panel, as the Claimant did in the present case. The Appeal Panel has a wide discretion as to whether to conduct the appeal on the papers or to examine a claimant. In these circumstances, I am persuaded by the submissions of Mr Combe that it would not be appropriate to set aside the decision of the AMS since the setting aside of the decision of the Appeal Panel is sufficient for the matter to be considered afresh by a new Appeal Panel.

62. Mr Combe submitted that even if I were satisfied that there was an error of law on the face of the record or jurisdictional error, I ought not, as a matter of discretion, set aside the decision of the Appeal Panel because it would be inevitable that a new Appeal Panel would come to the same decision. I am not persuaded that it would be appropriate to refuse relief for an established error of law on the face of the record on the basis of the predicted result of the application of the Guidelines by an expert medical panel such as the Appeal Panel. I am not persuaded that it would be inevitable that no adjustment would be made, particularly as it cannot presently be known whether the new Appeal Panel will choose to re-examine the Claimant and what the results of any such examination will be: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 (Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 54. Further, the Claimant is entitled to have her permanent impairment assessed by the body on which the legislature has chosen to confer that task.

63. I consider it to be desirable that the matter be considered by a differently constituted Appeal Panel since there would be a risk of apprehension of bias if the matter were returned to the same Appeal Panel.

Costs

64. The parties accepted that there was no reason to depart from the usual rule that costs ought follow the event: UCPR, r 42.1.

Orders

65. For the reasons given above, I make the following orders:

1. Set aside the decision of the third defendant made on 5 November 2019.

2. Remit the matter to the second defendant to be determined by an appeal panel differently constituted.

3. Order the first defendant to pay the plaintiff’s costs of the proceedings.

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Decision last updated: 22 June 2020