Pitsonis v Registrar of the Workers Compensation Commission

[2008] NSWCA 88

New South Wales

Court of Appeal

CITATION:	Marina PITSONIS V REGISTRAR OF THE WORKERS COMPENSATION COMMISSION & ANOR [2008] NSWCA 88
HEARING DATE(S):	29 January 2008
JUDGMENT DATE:	9 May 2008
JUDGMENT OF:	Mason P at 1; McColl JA at 63; Bell JA at 64
DECISION:	Grant leave to appeal but the appeal is dismissed with costs.
CATCHWORDS:	WORKERS COMPENSATION – Proceedings to obtain compensation – determinations of claims – medical examinations – submission to medical examination – where approved medical specialist assessed impairment at less than 15% – where percentage impairment contested - WORKERS COMPENSATION – Proceedings to obtain compensation – determinations of claims – jurisdiction of courts, tribunals, commissions and boards – whether arguable grounds of appeal from assessment of approved medical specialist in a Medical Assessment Certificate – whether error in conclusion of Registrar’s Delegate that there were no arguable grounds of appeal – demonstrable error – incorrect criteria – Workplace Injury Management and Workers Compensation Act 1998, s327
LEGISLATION CITED:	Workplace Injury Management and Workers Compensation Act 1998
CATEGORY:	Principal judgment
CASES CITED:	Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149, (2007) 4 DDCR 607 Pitsonis v Registrar of the Workers Compensation Commission & Anor [2007] NSWSC 50 Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 Collector of Customs v Pozzolanic (1993) FCR 28 Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939
PARTIES:	Appellant - Marina Pitsonis First Respondent - Registrar of the Workers Compensation Commission Second Respondent - State of New South Wales (Department of Education and Training)
FILE NUMBER(S):	CA 40108/07
COUNSEL:	Appellant - S Norton SC, EE Welsh Second Respondent - CE Adamson SC, JW Catsanos
SOLICITORS:	Appellant - MacMahon Associates Pty Ltd First Respondent - Crown Solicitor's Office Second Respondent - Moray & Agnew
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	30064/06
LOWER COURT JUDICIAL OFFICER:	Malpass AsJ
LOWER COURT DATE OF DECISION:	13 February 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 50

CA 40108/07

MASON P
McCOLL JA
BELL JA

Date 9 May 2008

PITSONIS v REGISTRAR OF THE WORKERS COMPENSATION COMMISSION & ANOR

The applicant was a teacher in the NSW education system and suffered physical and psychiatric injuries stemming from an assault by a student in 2002. In preparation for commencing common law proceedings the applicant provided a report of a forensic psychologist that assessed her impairment at 17%, being above the 15% threshold requirement in s314 of the Workplace Injury Management and Workers Compensation Act 1998. The parties were unable to agree on the quantum of the psychological claim and the claim was referred for assessment by an approved medical specialist.

The specialist issued a Medical Assessment Certificate under s325 of the Act and concluded, based on the applicant’s history and subsequent events, including her treatment, that the applicant’s impairment was 7%. This percentage assessment was arrived by applying the criteria for assessing psychiatric impairment under Chapter 11 of the WorkCover Guides.

The applicant sought to exercise her right to appeal to a Medical Panel under s327 of the Act by application to the Registrar. The application contended that there were available statutory grounds for appeal under paragraphs (b), (c) and (d) of s327. However the Registrar’s Delegate formed the opinion on the material before him that there were no arguable grounds of appeal. The application for appeal to a medical panel was dismissed.

The applicant’s appeal to the Supreme Court was dismissed by Malpass AsJ.

In the Court of Appeal the applicant submitted that the Delegate ought to have found that the submissions in the appeal from the conclusions of the approved medical specialist foreshadowed an arguable appeal on the basis that the specialist’s assessment i) was made on incorrect criteria as per s327(c), and/or ii) had a demonstrable error as per s327(d). The applicant argued that the specialist did not give proper effect to aspects of the applicant’s history either recorded elsewhere in the Certificate or stated by the applicant but not recorded.

HELD:

(Per Mason P, McColl JA and Bell JA agreeing)

(1) Factual errors made by an approved medical specialist as recorded in the Certificate would not usually satisfy the “incorrect criteria” ground of appeal in s327(3)(c) of the Act. (at [41]-[42])

(2) The applicant’s submission alleges errors in the factual data that the specialist applied to the appropriate criteria. It does not reveal that the doctor failed to address the WorkCover Guides or failed to apply the criteria stipulated in them. (at [43])

Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284, approved and applied. Campbelltown City Council v Vegan [2004] NSWSC 1129, referred to.

(3) For a Certificate to have a “demonstrable error” under s327(3)(d) of the Act, the appellant needs to demonstrate that there is an arguable case of error appearing on the face of the Certificate. It may be error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3)(a) or (b) being adduced in the appeal. (at [49])

Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284, approved and applied. Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, approved.

(4) The complaint by the applicant is, in effect, cavilling at matters of clinical judgment. (at [59])

ORDERS: Leave to appeal granted, appeal dismissed with costs.

CA 40108/07

MASON P
McCOLL JA
BELL JA

Date 9 May 2008

PITSONIS v REGISTRAR OF THE WORKERS COMPENSATION COMMISSION & ANOR

JUDGMENT

1 MASON P: In this application for leave to appeal the Court heard full argument as on an appeal.

Background

2 The applicant was a teacher in the New South Wales education system between 1978 and 2003. She retired on medical grounds stemming from an assault by a student in 2002 in which she suffered physical and psychiatric injuries.

3 Notice of her intention to commence common law proceedings was served on the employer in 2003. Before proceedings could be commenced it was necessary to determine whether she had suffered a whole person impairment greater than 15% (see Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act), s314).

4 The applicant relied principally upon a report of a forensic psychiatrist, Dr Andrew Robertson, who had assessed impairment at 17%.

5 In December 2004 an Application to Resolve a Dispute was filed in the Workers Compensation Commission. The parties were unable to agree on the quantum of the psychological claim. In consequence, the claim was referred for assessment by an approved medical specialist, Dr Parmegiani.

The impugned Certificate

6 Dr Parmegiani issued a Medical Assessment Certificate under s325 of the WIM Act. It based itself upon information, including general and clinical histories, derived from a long list of medical reports and from an examination of the applicant.

7 The Certificate records a “brief history [spanning almost a page and half] of the incident [involving the compensable injury] and of the subsequent related events, including treatment”. These include the following present relevant data:

Ms Pitsonis stopped working as a special education teacher in January 2002. She continued to work on her farm, and looked after 39 Alpacas. She looked after the paddocks and her animals’ needs. This included veterinary care and injections. She employed a man, half a day per week. Ms Pitsonis worked 8-10 hours per day. She showered daily. She shopped and prepared her meals. She recently built a wallaby fence. She was able to drive to unfamiliar areas on her own. She travelled to Greece in 2004 and spent 8 weeks there. She told me her family owned a house and she renovated it. This included painting shutters and fixing walls. She performed some of these tasks herself and employed tradesmen to do other work. Ms Pitsonis did not mix socially. She read for 10 to 15 minutes before losing concentration. She did not go to clubs, cinemas or restaurants. She visited her neighbour and taught her Greek two hours every two weeks.

8 Then followed a record of a clinical history that includes “findings on mental state examination”. These findings include information disclosing that Dr Parmegiani took into account his observations of the applicant’s capacity to provide a full and accurate history. He recorded:

Ms Pitsonis was an emaciated 49-year-old woman. She was punctual for her appointment and co-operative with the interview process. She was a poor historian, and she paused for up to 15 seconds before answering questions. She began hyperventilating at the beginning of the interview and I informed her that I was going to postpone the assessment if needed. She told me she wanted to proceed and she regained control of her breathing. Her emotional expression was reduced in range and she did not smile. She did not report visual or auditory hallucinations and she did not express delusional ideas. She was oriented in time, place and person, and her memory was intact. She came to the interview from Bega by plane.

9 The doctor certified permanent whole person impairment, none of which was attributable to any pre-existing injury, abnormality or condition. The assessment was stated to be based on “the clinical assessment and perusal of documentation submitted by the parties”.

10 Dr Parmegiani assessed the applicant’s impairment at 7%, explaining his reasons as follows:

Ms Pitsonis’ psychiatric impairment is rated in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment, Chapter XI.
Self Care and Personal Hygiene
Class 2: Ms Pitsonis showered daily and did not need assistance with personal hygiene and nutrition. She shopped and prepared meals. She however missed meals at times, and did not take care of her appearance. On mental state examination, she looked unkempt and emaciated.
Social and Recreational Activities
Class 3: Ms Pitsonis did not identify any social or recreational activities. She did not go to clubs, or cinemas. Her mother took her out to a restaurant when Ms Pitsonis visited her. This occurred every three or four months.
Travel
Class 1: Ms Pitsonis was able to travel overseas on her own. She went to Greece in 2004.
Social Functioning
Class 3: Ms Pitsonis would find it difficult to form or sustain relationships in her state. She remained socially withdrawn and not interested in social contact.
Concentration, Persistence and Pace
Class 2: Ms Pitsonis was able to look after her 39 alpacas on her farm. She recently spent 8 weeks overseas, renovating the family home in Greece. She organised tradesmen, and she performed some of the work herself.
Employability
Class 2: Ms Pitsonis worked full time on her farm. She estimated working 8 to 10 hours per day. She is however totally unfit for pre-injury duties as a special education teacher.
Arranging the classes in ascending order 1, 2, 2, 2, 3, 3 median = 2, aggregate = 13. This is equivalent to a whole person psychiatric impairment of 7%.

11 Dr Parmegiani also offered brief comments regarding the medical opinions submitted by the applicant. He agreed with Dr Robertson’s diagnosis of post-traumatic stress disorder. Dr Parmegiani continued:

Dr Robertson rated Ms Pitsonis’ psychiatric impairment at 17%. The discrepancy in ratings is in Concentration, Persistence and Pace. Dr Robertson rated impairment at Class 3. This however was not consistent with Ms Pitsonis’ capacity to run her business and renovate a house in Greece over a period of 8 weeks.
Dr Robertson also rated Ms Pitsonis’ impairment of Employability at Class 4. This is not consistent with the account Ms Pitsonis gave me. She indicated that she was able to work full time in a position that was removed from pre-injury duties.

12 Chapter 11 of the WorkCover Guides, upon which the Certificate was based, appears in an extract from the Government Gazette dated 27 October 2006. The Chapter lays out the method for assessing psychiatric impairment, with evaluation to be conducted by a psychiatrist who has undergone appropriate training in the assessment method (§§11.1-11.2).

13 Behavioural consequences of psychiatric disorder are to be assessed on six scales, each of which evaluates an area of functional impairment (§11.12). Those scales correspond with the headings in the portion of the Certificate already extracted, ie “Self Care and Personal Hygiene” etc.

14 Clause 11.14 of the Guides states that impairment in each area is to be rated using class descriptors. Classes range from 1 to 5, in accordance with the severity. Thus, to give the scale referable to Travel (which assumes some relevance in this matter) it provides:

Table 11.3: Psychiatric impairment rating scale - Travel
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: can travel to new environments without supervision.
Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3 Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4 Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5 Totally impaired: may require two or more persons to supervise when travelling.

15 The Guides instruct in §11.14 that:

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.

16 It is common ground that the specialist approached his task by reference to Chapter 11 and that the Certificate addresses the matters required by s325(2) of the Act, namely:

(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.

17 Dr Parmegiani addressed the six scales to which his attention was drawn by Chapter 11 of the Guides. And he gave reasons which set out the facts on which his assessment was based as well as his own reasons for the assessment that he made.

18 Section 326(1)(a) of the Act stipulates that a Medical Assessment Certificate pursuant to a medical assessment under the relevant Part is conclusively presumed to be correct as to the degree of permanent impairment of a worker as a result of an injury.

Registrar’s Delegate blocks appeal to Appeal Panel

19 The applicant sought to exercise her right to appeal to a medical panel conferred by s327 of the Act. Subsection (4), as it stood at the relevant time, stipulated that the appeal was to be made by application to the Registrar and was not to proceed “unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists”.

20 The role of the Registrar (or the Registrar’s Delegate) is that of a gatekeeper. In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149, (2007) 4 DDCR 607 this Court pointed out (at [73]) that the criterion for the appeal proceeding past the gatekeeper was not the objective existence of the grounds of appeal, but the opinion of the Registrar concerning whether one of those grounds existed. Campbell JA, with whose reasons in this respect Hodgson JA and Handley AJA agreed, said (at [74], [76]):

74. It seems to me that section 327(4) requires the Registrar to form an opinion, bona fide, about whether one of the grounds for appeal specified in sub-section (3) exists. While the ground must be alleged, I doubt that it could be said that it “appears to the Registrar” that one of the grounds “exists” unless the Registrar had actually formed an opinion that it existed.
…
76. To decide that a ground of appeal “exists” is not the same as deciding that the ground of appeal has actually been made out. A ground of appeal is a statement of a contention one wishes to make in the course of an appeal, as a reason why the appeal should succeed. A ground of appeal can “exist” if it is a contention of that type, made in circumstances where there is a sufficiently realistic prospect of the ground being made out. And in deciding whether the prospect of the ground being made out is “sufficiently” realistic, one turns to the context in which, and purpose for which, the question is being asked. In the context of this particular piece of legislation, deciding that the ground exists involves the Registrar forming a view that the ground of appeal has enough substance to warrant the appeal proceeding.

21 The available grounds for appeal under s327(3) are limited to:

(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),
(c) the assessment was made on the basis of incorrect criteria, and
(d) the medical assessment certificate contained a demonstrable error.

22 The applicant contended in her Application to the Commission that there were available grounds for appeal under paras (b), (c) and (d) of s327(3). She listed the documents reviewed by Dr Parmegiani and attached four pages of submissions signed by her solicitor (hereafter the Submissions).

23 The correctness in law of the Delegate’s Decision is to be judged by reference to the material placed before him in the Application. The Submissions contended that there had been a failure to afford fairness in a correct application of the criteria to the applicant’s disabilities. There was no complaint as to Dr Parmegiani’s assessment with reference to Self Care and Personal Hygiene. As to the remaining five scales, the Submissions stated:

SOCIAL AND RECREATIONAL ACTIVITIES CLASS 3
The approved medical specialist did not have any regard to his own findings on the applicant’s mental state at examination which included his observation of her hyperventilating and a need to control her breathing. He noted that her emotional expression was reduced in range and she did not smile. Curiously he found that her memory was intact in the same paragraph in which he recorded that she was a poor historian who paused for up to 15 seconds before answering questions. The doctor does not appear to have taken any history of the applicant’s premorbid social and recreational activities or the way they have been affected by her psychological injuries. The applicant no longer socialises. She is extremely socially isolated. It is submitted that the approved medical specialist applied incorrect criteria in assessing this aspect of the matter.
TRAVEL
Dr Parmegiani has failed to record that the applicant required a friend to accompany her to the medical examination to permit her to attend. He also failed to record that the applicant had to have prearranged air travel to attend the appointment as she is unable to travel by car in areas with which she is unfamiliar. In fact something to the contrary was recorded under clinical history on page 4 where the doctor recorded that the applicant was able to drive to unfamiliar areas on her own. The applicant denies that this is the case or that she said that.

Her travel to Greece in 2004 again involved a friend Marie Hlavac accompanying the applicant to the airport, helping her check in her luggage and making sure she got on the plane. It was a direct flight to Athens and on arrival the applicant had simply to get into a taxi to be taken to a prearranged destination which was the home of her uncle. On arrival in Greece the applicant suffered an extreme stress reaction which included an eruption of dermatis which covered her hands and for which she required medical attention. The applicant told Dr Parmegiani of those details but they are not referred to anywhere in his report. The applicant suffered similar extreme nervous symptoms on the return journey.
Dr Parmegiani has also recorded that the applicant renovated a house while in Greece. That is an extravagant description of what the applicant in fact did. To the extent that the applicant performed work repairing an old home of her fathers, it was out of her need to be physically occupied in order to avoid the intrusion of her psychiatric problems which can become overwhelming. The assessment of the applicant in terms of social and recreational activities as class 3 again proceeds on the basis of incorrect criteria.
SOCIAL FUNCTIONING
The applicant repeats the submissions made in relation to social and recreational activities above. Again when considering the evidence as a whole and in particular matters recorded by Dr Parmegiani, that aspect of the assessment is proceeded on the basis of incorrect criteria.
CONCENTRATION, PERSISTENCE AND PACE
For some reason Dr Parmegiani has assessed the applicant as class 2 which suggests a fairly minor impairment for concentration, persistence and pace. That is contrary to the doctor’s own findings on mental state examination which commenced at the bottom of page 4 of his report. His findings were as follows:
“Miss Pitsonis was an emaciated 49 year old woman. She was punctual for her appointment and co-operative with the interview process. She was a poor historian, and she paused for up to 15 seconds before answering questions. She began hyperventilating at the beginning of the interview and I informed her that I was going to postpone the assessment if needed. She told me she wanted to proceed and she regained control of her breathing. Her emotional expression was reduced in range and she did not smile.”

The applicant recalls that at that point in the interview Dr Parmegiani had a conversation with her about why it took her so long to respond to his questions. She told him that the problem for her was that she had to not only listen to the question but she also visualised each question as it was asked. It is hard to explain on that basis how Dr Parmegiani can then conclude that paragraph as follows:
“She did not report visual or auditory hallucinations and she did not express delusional ideas. She was oriented in time, place and person, and her memory was intact. She came to the interview from Bega by plane.”
EMPLOYABILITY
It is incorrect to say Miss Pitsonis works full time on her farm. She keeps herself occupied to avoid intrusive thoughts but the Alpaca farm is not her job. All of the medical evidence in the case suggests that she is not fit for employment at the present time other than what she is doing on her farm. That is vastly different to say that what she does on her farm is something which equates to proper employment. Nor is it a lifestyle decision on the part of the applicant. That has never been suggested to her nor is it suggested by Dr Parmegiani. She should for any practical purpose be regarded as class 4 or 5 for the purpose of employability as indicated by Dr Robertson. Again this is not simply a matter of an AMS coming to a different opinion to a qualified doctor but rather it is a demonstration of his failure to apply the appropriate criteria in this case.

24 The Delegate’s decision was that it did not appear to him that at least one of the grounds for appeal specified in subsection (3) existed. Having determined that the appeal should not proceed, the Delegate remitted the matter back to an arbitrator to allow any outstanding issues to be resolved.

25 Only paras (c) and (d) of the statutory grounds of appeal in s327(3) of the WIM Act are still pressed.

26 The Delegate gave the following reasons for his conclusion referable to grounds (c) and (d).

General
v). The Appellant alleges the assessment was made on the basis of incorrect criteria or the medical assessment certificate contains a demonstrable error, primarily because the Approved Medical Specialist did not obtain proper details from the Appellant and did not have regard to his own findings, in relation to:
- Social and Recreational Activities Class 3,
- Travel,
- Social Functioning,
- Concentration, Persistence and Pace,
- Employability.
vi). The Appellant filed a written statement dated 7 June 2002 in these proceedings, which was provided to the Approved Medical Specialist before the medical assessment. The Appellant did not provide an updated statement prior to the medical assessment.
vii). The Approved Medical Specialist relied on the Appellant’s written statement and the history provided by the Appellant at the medical assessment in assessing the worker’s impairment.
viii). The Appellant had the opportunity to provide the Approved Medical Specialist with the information listed in the submissions in the written statement admitted in the proceeding or in an updated statement prior to the examination.
ix). The failure of the Appellant to do so, and the provision of this information by way of submission after the assessment, does not appear to reveal that the assessment appealed against was made on the basis of incorrect criteria or the medical assessment certificate contains a demonstrable error.
x). Although the Appellant submits that the Approved Medical Specialist did not obtain, incorrectly recorded or misinterpreted this information, the onus is on the Appellant to provide the information before or at the assessment.
xi). It does not appear that a ground for appeal exists under Section 327(3)(c) or (d) in relation to the dispute over what history was verbally provided by the Appellant to the Approved Medical Specialist, particularly where the Appellant has had an opportunity to provide documentary information and failed to do so.
xii). The Registrar also has regard to paragraphs 2.1(a), 2.1(b), 2.1(c), 2.1(d) and 2.1(e) of the Respondent’s Response to Application to Appeal the Decision of an Approved Medical Specialist filed 10 August 2005.
xiii). It appears that the Approved Medical Specialist did have regard to his own findings and observations. The Medical Assessment Certificate reveals the Approved Medical Specialist reviewed all relevant material, undertook a detailed examination, obtained a history and provided adequate reasons for his assessment.
xiv). The Appellant’s submissions also do not appear to identify where the assessment appealed against was made on the basis of incorrect criteria.

27 There is nothing to indicate that it was ever suggested to the Registrar that the Certificate contained an “obvious error” capable of engaging the Registrar’s power to issue, or approve, of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error (see s325(3) of the WIM Act).

28 Nor has the applicant sought to exercise the right to apply to the Registrar, a court or the Commission for the matter to be referred again for assessment (see s329 of the WIM Act).

Proceedings in the Supreme Court: General Observations

29 An application to challenge the Delegate’s decision on jurisdictional grounds was dismissed by Malpass AsJ (see Pitsonis v Registrar of the Workers Compensation Commission & Anor [2007] NSWSC 50). It is from this order that the applicant seeks leave to appeal. The Registrar filed a submitting appearance.

30 These proceedings do not involve any direct challenge to the Certificate, for example, on the basis that it is vitiated by want of procedural fairness.

31 The reasons of an administrative decision-maker (especially one who is not a judge) are not to be “construed minutely and finely with an eye keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-2, approving Collector of Customs v Pozzolanic (1993) FCR 280 at 287). A court should exercise restraint lest it mistakes looseness in language for errors of substance.

32 Before us, senior counsel for the applicant argued that the Registrar’s Delegate ought to have proceeded on the basis that the applicant was in a position to prove to the Appeal Panel, if necessary, the assertions in the Submissions as to matters put to the doctor by way of oral history during the examination and not recorded in the Certificate. I am prepared to make such an assumption, but it only assists the applicant to the extent that the matters foreshadowed would be relevant to the statutory grounds of appeal that are pressed. After all, judicial review of administrative action does not concern itself with disputes lacking utility.

33 In my view, the Delegate has not been shown to have committed any jurisdictional error in reaching the opinion that he did. He applied the statutory test set out in s327(4) effectively in accordance with the principles from Riverina Wines to which I have referred.

34 It was open to the Delegate to reach the conclusions he did in relation to grounds (c) and (d). I explain this conclusion in the next two portions of these reasons.

Assessment based on incorrect criteria (s 327(3)(c))?

35 The applicant first submits that the Delegate ought to have found that the Submissions foreshadowed an arguable appeal showing that Dr Parmegiani based his assessment on “incorrect criteria” falling within s327(3)(c).

36 Malpass AsJ rejected the argument based upon s327(3)(c) because, as presented to him, it went no further than an argument that Dr Parmegiani had failed to correctly apply the Guides. This was really no more than a dispute going to the merits of the assessment. The Delegate was held not to have erred when he refused to permit such a complaint to go forward to the Appeal Panel. It did not fall within para (c).

37 In my view the Associate Judge was correct.

38 I do not accept the argument that the matters stated in the Submission reveal that the doctor failed to address the Guides or to apply the criteria stipulated in them. It is not to be overlooked that elements of clinical judgment were involved and that, as §11.14 the Guides state, the examples of activities contained in them are examples only.

39 The Submissions filed in the Commission accepted that the specialist had addressed the assessment task by reference to the relevant chapter of the Guides. The thrust of the attack was that he nevertheless failed to give proper effect to aspects of the applicant’s history that had been, in some cases, recorded elsewhere in the Certificate and, in others, stated by the applicant but not recorded.

40 The expression “incorrect criteria” is undefined in the Act. In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister’s Second Reading speech to the effect that s327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the “criteria” upon which assessment is to be based are to be found in any relevant guides including guides issues by WorkCover. At [60] his Honour observed that this view drew support from the requirement in s322(1) that the assessment is to be made “in accordance with the WorkCover Guidelines”.

41 The Chief Judge’s decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284). Basten JA, with whose reasons McColl JA agreed said (at 391[95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be “demonstrable errors” within s327(3)(d), they would not usually satisfy the “incorrect criteria” ground. His Honour observed that the latter ground:

“must refer to such matters as the tests set out in the Guidelines, where they are applicable”.

42 I agree.

43 The manner in which the applicant framed her complaint about the Certificate in the Submissions did not amount to an assertion that the doctor had based the Certificate on “incorrect criteria”. It rose no higher than alleging errors in the factual data that the specialist applied to the appropriate criteria. The Delegate did not err in concluding that a ground of appeal referable to s 327(3)(c) did not “exist”.

Assessment Certificate contained a demonstrable error (s327(3)(d))?

44 Alternatively, it was submitted that the Delegate ought to have found that the Submissions foreshadowed an arguable appeal to the Appeal Panel showing that the Certificate “contained a demonstrable error” falling within s327(3)(d).

45 The Court was not referred to any judicial exegesis of s327(3)(d) beyond the tentative remarks of Basten JA in Vegan referred to above where his Honour said (at 391[95], emphasis added):

It is arguable that factual errors made by an approved medical specialist, as recorded in the certificate , may be “demonstrable errors”, but they would not usually satisfy the “incorrect criteria” ground.

46 Senior counsel for the applicant argued that an error could be “demonstrable” even though evidence beyond the Certificate was required to establish it. I perceive that it was implicit in this submission that the error had to be material and this, certainly, is my view. But even this qualification leaves para (d) so wide in its scope that I cannot accept that it was the Legislature’s intent.

47 The word “demonstrable” means capable of being demonstrated (The Macquarie Dictionary 4th ed, The Macquarie Library Pty Ltd, Australia, 2005, New Penguin English Dictionary 1st ed, Penguin, London, 2000). If the word “contained” in para (d) were read as no more than “have within itself” (Macquarie Dictionary), then it would follow that s327(3)(d) would confer the equivalent of a right of appeal on all grounds subject only to the persuasive burden being carried by the appellant. This would render para (c) redundant and would tend to trespass over the areas addressed in paras (a) and (b).

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

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

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

50 This may at first blush appear harsh, but one must avoid a mindset that regards every decision affecting rights as appealable, let alone appealable on unconstrained grounds.

51 Furthermore, s325(3) and s329 each offer an alternative stop gap in many situations.

52 Malpass AsJ rejected this argument on the following grounds at [28]-[31]:

28. In so far as a challenge is made in this Court to his assessment on the basis that the certificate contains demonstrable error the case is maintained largely by way of the assertion of alleged error or inadequacy in the history which forms part of the certificate (there was also an apparent allegation of inconsistency between a finding that the plaintiff’s memory was in tact and the recorded history (she was a poor historian)). This allegation can be immediately put aside as I am not satisfied that it can be sustained.
29. Generally speaking, in the present case, it is said that the error in, or inadequacy of, history was, inter alia, of the nature of either a failure to record or accurately record history that was given or a failure to ask relevant questions (see paragraphs 24 and 25 of the plaintiff’s written submissions).
30. In the present case, the initial problem confronting the plaintiff is the difficulty had in the demonstration of such error. There is an evidentiary hurdle which she could not overcome. All that the plaintiff can look to is competing assertion (made subsequent to the certificate) and speculation. The contents of the certificate do not support the assertion of error. In the circumstances the challenge failed at this threshold stage.
31. The reaching of that view makes it unnecessary to further consider whether any alleged error could constitute a “demonstrable error” which the certificate contains.

53 In my view, the Associate Judge was correct in these conclusions.

54 The argument as developed in this Court bore several strands. First, the doctor is said arguably to have failed to apply matters of history or observation recorded in one part of the Certificate to the all-important step of determining the relevant class of seriousness applicable with reference to the five matters or “Scales” that remain contentious. Examples of this error are said to have been raised in the Submissions in relation to social and recreational activities; and concentration, persistence and pace.

55 Secondly, it was said that Dr Parmegiani arguably failed to record and take into account material information given to him by the applicant during her examination. Examples of this complaint appear in the Submissions under the side headings Travel (second para) and Concentration Persistence and Pace (second para).

56 Thirdly, the doctor is said to have erred in misrecording a statement that the applicant was able to drive to unfamiliar areas on her own when, according to the Submissions, the applicant denied that she had said this.

57 In Vegan, there was no dispute that demonstrable error had occurred. There was a clear inconsistency in the Certificate because, having found a percentage of permanent impairment, the specialist had neglected to take it into account in reaching his final conclusion.

58 None of the matters complained about with reference to the Certificate in this matter are of a similar nature.

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

60 I do not exclude the possibility that a Certificate might be capable of challenge by way of judicial review on the ground that there was, for example, a denial of procedural fairness. Sometimes, but only sometimes, the failure of a decision-maker to hear or address relevant factual material or arguments will ground a successful challenge upon this ground.

61 In conclusion, the applicant’s arguments rise no higher than contentious assertions that error might be inferred within grounds (c) or (d) of s327(3) from the conclusions reached by the medical examiner when he applied the factual and diagnostic matters that he thought relevant to the task of assessing the behavioural consequences of the applicant’s permanent psychiatric disorder.

62 I propose that the Court grant leave to appeal but that the appeal be dismissed with costs.

63 McCOLL JA: I agree with Mason P.

64 BELL JA: I agree with Mason P.

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