Secretary, Department of Communities and Justice v Lewandowski

[2023] NSWSC 334

Supreme Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334

Hearing dates:

29 March 2023

Date of orders:

5 April 2023

Decision date:

05 April 2023

Jurisdiction:

Common Law - Administrative Law

Before:

Griffiths AJ

Decision:

(1) The second defendant’s decision dated 15 July 2022 be set aside.

(2) The matter be remitted to the third defendant to enable the appeal to be redetermined according to law.

(3) There be no order as to costs.

Catchwords:

ADMINISTRATIVE LAW – Review of medical assessment by Appeal Panel – Judicial review of Appeal Panel Decision – Assessment of whole person impairment – Deduction for previous injury or pre-existing condition or abnormality – Jurisdictional error and error of law on face of the record

Legislation Cited:

Supreme Court Act 1970 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Cole v Wenaline Pty Ltd [2010] NSWSC 78

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365

Marksv Secretary, Department of Communities and Justice [2021] NSWSC 306

Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Texts Cited:

American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed, 2001)

State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021)

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Plaintiff)
Deborah Lewandowski (First Defendant)
Paul Sweeney, Dr Patrick Morris and Dr Michael Hong as a Medical Appeal Panel (Second Defendant)
President of the Personal Injury Commission of NSW (Third Defendant)

Representation:

Counsel:
B McManamey (Plaintiff)
P Stockley (First Defendant)

Solicitors:
Moray & Agnew (Plaintiff)
Stacks Law Firm (First Defendant)
Crown Solicitors Office (Second and Third Defendants)

File Number(s):

2022/00305272

Publication restriction:

Nil

Choose an item.

JUDGMENT

1. The plaintiff seeks judicial review of a decision dated 15 July 2022 by an Appeal Panel (Panel) in relation to a medical dispute. The Panel conducted an appeal under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). The appeal related to a decision and medical assessment certificate by Dr John Baker in respect of the defendant, Ms Lewandowski.

Background Facts and Procedural History

2. Ms Lewandowski brought a claim for workers compensation benefits in respect of a psychological injury alleged to have occurred as a result of having an excessive workload, bullying and harassment in her work as a community corrections officer up to and including on her last day of work (15 June 2018). Her employer was the Secretary, Department of Communities and Justice (formerly, the Department of Corrective Services).

3. On 20 January 2018, Ms Lewandowski was eating in a restaurant when it was held up by a man wielding a knife. Ms Lewandowski stated that the holdup upset her and she was sent home from work due to her distressed state. Ms Lewandowski subsequently found it difficult to perform her work with offenders as it made her think of the holdup. Ms Lewandowski remained off work, providing supporting medical certificates from 22 January 2018 until 20 April 2018. This is not the injury the subject of Ms Lewandowski’s claim (the subject injury related to her experience of having an excessive workload, bullying and harassment). Rather, it was claimed to be a pre-existing condition for the purposes of s 323 of the 1998 Act.

4. Ms Lewandowski returned to work, initially for around 20 hours per week. On 14 May 2018, a new manager was appointed. Ms Lewandowski says she was given a significant increase in her workload and the manager was dismissive when she complained about that workload. As noted above, Ms Lewandowski ceased working on 15 June 2018.

5. On or about 5 August 2020 Ms Lewandowski made a claim for permanent impairment compensation (in the form of both weekly payments and lump sum compensation) under the Workers Compensation Act 1987 (NSW) (1987 Act). She relied upon a report of Dr Thomas Oldtree-Clark dated 5 May 2020. Dr Oldtree-Clark diagnosed Ms Lewandowski with post-traumatic stress disorder (PTSD) and, in accordance with the Psychiatric Impairment Rating Scale (PIRS), assessed 17% whole person impairment (WPI) as a result of her employment injury. He made an adjustment of 1% for a mild treatment effect, resulting in a total WPI of 18%. He made no deduction under s 323 of the 1998 Act. This is because he concluded that there was no evidence of a pre-existing psychiatric condition “which would cause significant impairment”.

6. On 1 September 2021, Ms Lewandowski filed an “Application to Resolve a Dispute” in the Personal Injury Commission (Commission), claiming weekly compensation and lump sum compensation for permanent impairment in relation to her psychological injury. The Department disputed the claim.

7. On 23 November 2021, Ms Lewandowski’s claim in relation to weekly compensation resolved by consent during a conciliation/arbitration hearing before a member of the Commission, liability having been accepted by the Department. No agreement was reached in relation to lump sum compensation, and it was agreed that this component of the claim would be referred to a medical assessor.

8. In the proceedings before the Commission, Dr Oldtree-Clark’s substantive report was evidently not included, only a report by him which provided an assessment of WPI.

9. In the Commission, the Department relied upon a report of Dr Peter Whetton dated 23 November 2020. Dr Whetton opined that the incident at the restaurant had caused Ms Lewandowski’s PTSD. Dr Whetton diagnosed chronic adjustment disorder with anxiety and depression against the background of PTSD. Dr Whetton opined that Ms Lewandowski’s employment was the main contributing factor to the development of the chronic adjustment disorder with anxiety and depression. Dr Whetton concluded that the bulk of Ms Lewandowski’s current symptoms were due to the adjustment disorder, not her PTSD. Dr Whetton assessed Ms Lewandowski as having an 8% WPI as a result of the employment injury (including an adjustment of 1% made for the effects of treatment) and, although asked to consider whether to make a deduction under s 323 of the 1998 Act, did not do so.

10. The Department also relied upon a report by Dr Roger Wenden dated 21 March 2019. Dr Wenden had taken a history that, following the armed holdup, Ms Lewandowski suffered from insomnia, increased arousal and hypersensitivity to loud noises, and flashbacks of the holdup. Dr Wenden thought Ms Lewandowski suffered from an exacerbation of PTSD and adjustment disorder with mixed anxiety and depressed mood. He opined that both conditions had been aggravated by work-related incidents but noted that the conditions had initially been caused by non-work related matters. In relation to the PTSD, it was the holdup, and in respect of the adjustment disorder, it had been caused by a breast cancer and cardiac condition. He added that while her employment was a factor in the aggravation of Ms Lewandowski’s PTSD, it was “not the main factor, other factors being her medical history of cardiac disease and breast cancer”. Dr Wenden did not make an assessment of WPI, and therefore did not express any opinion regarding any deduction under s 323 of the 1998 Act.

Dr Baker (Medical Assessor)

11. The difference of opinion as to the extent of WPI between Dr Whetton and Dr Oldtree-Clark gave rise to a medical dispute (see s 319 of the 1998 Act). The President’s delegate referred the dispute to Dr Baker for a determination of Ms Lewandowski’s WPI.

12. A medical assessment certificate was issued by Dr Baker on 25 March 2022. Dr Baker diagnosed Ms Lewandowski as having work-related PTSD. Dr Baker referred to a history of bullying between 2011 and 2014. This was not a history which had featured in the assessment or opinion of the other three doctors. Dr Baker noted the holdup at the restaurant but made no reference in his report to the symptoms which immediately followed the holdup.

13. Although Dr Baker referred to Ms Lewandowski’s PTSD having been “exacerbated by her employer due to the bullying and harassment she experienced whilst attempting to return to her primary substantive role”, he did not clearly identify the original source of Ms Lewandowski’s PTSD. In particular, it is unclear whether he thought it began in 2011 or following the holdup. Dr Baker assessed Ms Lewandowski as having a 17% WPI, and in relation to making a deduction under s 323 of the 1998 Act stated that “[t]here is no deductible proportion”.

Appeal to the Medical Appeal Panel

14. The Department appealed against the medical assessment certificate of Dr Baker on the basis that there was a failure to make a deduction pursuant to s 323 of the 1998 Act. The appeal was referred to the Panel. The stated grounds were first, that the assessment was made on the basis of incorrect criteria and secondly, that the medical assessment certificate contained a demonstrable error.

15. In support of the first ground the Department submitted that Dr Baker had wrongly assumed in his assessment that Ms Lewandowski’s allegations of injury included events going back to 2011, whereas “the volume of supporting documentation provided to [him] clearly set out the nature of the injury being claimed … [was] confined to allegations during the period from April 2018 to June 2018”. It submitted that it was not open to Dr Baker to include conclusions regarding those earlier alleged workplace circumstances in the absence of any findings of liability in relation to those events, and that a deduction ought to have been made under s 323 of the 1998 Act in respect of these earlier events. In support of the second ground the Department submitted that “further demonstrable error” had been occasioned by Dr Baker’s failure to apply a deduction under s 323 of the 1998 Act which reflected the contribution to any psychological condition or abnormality arising from the restaurant incident in January 2018.

16. The Panel delivered its decision on 15 July 2022, accompanied by a detailed statement of reasons.

17. The Panel reviewed the original medical assessment by Dr Baker and determined that it was not necessary for Ms Lewandowski to undergo a further medical examination. This was because the Panel determined that the real issue in dispute was whether there should be a deduction under s 323 of the 1998 Act and that a further medical examination was unlikely to assist in determining that issue.

18. As to the first appeal ground, the Panel found that:

1. Resolution of this issue was “merely academic” because it had concluded that Dr Baker did not find Ms Lewandowski to have suffered injury because of her work prior to 2018. In any event, there was no obvious temporal limitation (to events in 2018) in the description of the injury referred for assessment to Dr Baker. The medical dispute was referred for an assessment of WPI for psychological injury deemed to have occurred on 15 June 2018. Dr Baker could not have readily gleaned from the referral or the material that the allegation of injury was limited to a short period of psychological stressors during 2018. A perusal of the documents may not have left Dr Baker with the clear impression that the injury was limited in time to events in the course of Ms Lewandowski’s employment in 2018.

2. In those circumstances, to certify permanent impairment based on periods of Ms Lewandowski’s employment prior to 2018 did not amount to demonstrable error or the application of incorrect criteria.

3. Although Dr Baker recorded the entirety of Ms Lewandowski’s psychological history, it is unlikely that he found that events prior to January 2018 were causative of her impairment.

4. The fact that Ms Lewandowski performed and enjoyed her routine employment over a long period without medical treatment is not consistent with her employment prior to 2018 “being causative of her impairment”.

5. There is no compelling evidence that the stressors to which Ms Lewandowski was exposed in 2012, 2013 and 2014 materially contributed to the onset of her PTSD in 2018 or materially contributed to the impairment certified by Dr Baker.

6. It is necessary for an employer seeking the benefit of s 323 of the 1998 Act to “point to evidence which would support a finding that a pre-existing condition or prior injury materially contributed not only to the injury but also to permanent impairment”. There was no evidence that Ms Lewandowski’s exposure to stressors in her prior employment caused or materially contributed to her impairment.

19. Accordingly, for these reasons, the Panel dismissed the first ground of appeal.

20. As to the second appeal ground, the Panel found that:

1. The evidence before Dr Baker undoubtedly established that Ms Lewandowski suffered symptoms of PTSD as a result of the incident at the restaurant in 2018. The Panel referred to evidence from Ms Lewandowski’s general practitioner (Dr Lois Oliver) who referred to Ms Lewandowski being unfit for work because of PTSD, evidence of a clinical psychologist who saw Ms Lewandowski on 14 February 2018 (Ms Yvette Greenhalgh), a report dated 13 February 2019 by a consultant psychologist (Dr Alan Doris) and a report dated 11 July 2019 by Ms Lewandowski’s treating psychologist (Ms Jennifer Grant). Reference was also made to the Department’s experts (Dr Whetton and Dr Wenden) that Ms Lewandowski suffered PTSD as a result of the restaurant incident, while adding that Dr Whetton thought that the effects of the incident had receded and played little or no part in the impairment and Dr Wenden considered that the stressors at work between April and June 2018 caused an exacerbation of Ms Lewandowski’s PTSD.

2. Dr Baker had failed to consider whether this incident materially contributed to Ms Lewandowski’s impairment. If Dr Baker did consider the question, he failed to provide reasons for his decision.

21. The Panel acknowledged that it needed to address the issue of whether there should be a deduction under s 323 of the 1998 Act for “the prior injury” and, if so, the extent of the deduction. The Panel’s reasoning on this issue may be summarised as follows:

1. Accepting that Ms Lewandowski suffered from PTSD, the Panel concluded there was little doubt that the restaurant incident “continued to play a causative role in her condition after she returned to work”. It added that it was difficult to conclude that the incident played no role at all in Ms Lewandowski’s condition “or, more importantly, in her impairment”. The Panel concluded on the probabilities that the incident continued to play “a minor part in the causation of the respondent’s impairment”.

2. The Panel then stated that, as Ms Lewandowski was symptomatic with PTSD at the time of her work injury, “it is necessary to consider [11.10] of the Guidelines in accordance with the reasoning in Marks”. As will shortly emerge, Simpson AJ delivered two separate reasons for judgment in the Marks litigation: Marksv Secretary, Department of Communities and Justice [2021] NSWSC 306 (Marks) and Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks (No 2)). Presumably, the Panel was referring to the first of those decisions, noting that explicit reference was made to that particular decision at [34] of the Panel’s reasons for decision and there is no express reference to her Honour’s second decision.

3. While the Panel described Ms Lewandowski’s PTSD as a result of the restaurant incident as a minor or background causative factor, it found that the circumstances of the case and the evidence available did not readily facilitate the assessment of pre-existing WPI in accordance with the PIRS. It is well to set out [63] of the Panel’s reasons because this paragraph is the focus of the judicial review challenge:

As the applicant was symptomatic with PTSD at the time of her work injury it is necessary to consider paragraph 11.10 of the Guidelines in accordance with the reasoning in Marks. While the panel accepts that the PTSD as result of the Thai restaurant incident was a minor or background causative factor, the circumstances of the case and the evidence available do not readily facilitate the assessment of pre-existing WPI in accordance with the PIRS. Measuring the respondent’s pre-existing impairment in accordance with the PIRS is entirely speculative. There is no clear evidence which addresses the PIRS scales at the time of her return to work. In the circumstances, the panel concluded that it is difficult to assess the pre-existing impairment in accordance with the PIRS and that the appropriate deduction should be 1/10^th.

4. The Department was required to adduce or point to evidence establishing the necessity for and extent of any deduction under s 323 of the 1998 Act. The Department did not adduce evidence which would support a greater deduction in this case. On the contrary, the opinion evidence on which the Department relied did not support any particular deduction being made. Accordingly, the Panel concluded that the appropriate reduction was 1/10^th (ie 2% when rounded up).

5. The Panel issued a certificate certifying 15% WPI after making a 1/10^th deduction pursuant to s 323 of the 1998 Act (the WPI before the deduction being 17%).

Summons seeking judicial review

22. On 13 October 2022, the Department filed a summons seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of the Panel’s decision on 13 October 2022. To succeed in that challenge, it was common ground that the Department needs to establish either error of law on the face of the record or jurisdictional error.

23. The Department challenges both the Panel’s decision dated 15 July 2022 and (somewhat curiously) the accompanying statement of reasons on the following three grounds:

1. The Panel erred in point of law and made a jurisdictional error when it asked itself the wrong question and determined the extent of the deduction under s 323 of the 1998 Act on the basis of assessing the pre-existing impairment rather than asking itself to what extent the found prior condition contributed to the impairment being assessed.

2. The Panel erred in point of law and made a jurisdictional error when it considered that the question of the extent of any deduction under s 323 of the 1998 Act was determined by applying Guideline [11.10] rather than the applicable law for determining such a deduction.

3. The Panel erred in point of law and made a jurisdictional error when it failed properly to consider whether the pre-existing condition in fact contributed to the matters relevant to an assessment of whole person impairment and to what extent there was such a contribution.

24. Ms Lewandowski is the first defendant, the Panel is the second defendant and the President of the Commission is the third defendant. The second and third defendants filed submitting appearances.

The parties’ submissions summarised

The Department’s submissions

25. The Department notes that its submissions relate to all three grounds of review, as each of these grounds relate to the approach of the Panel with respect to any deduction under s 323 of the 1998 Act.

26. The Department submits that [63] of the Panel’s decision demonstrates that the Panel approached the issue under s 323 of the 1998 Act solely on the basis of determining the level of impairment prior to the “work aggravation”, ie considering what the impairment would have been if assessed prior to the work injury (seemingly applying [11.10] of the Guidelines).

27. As noted above, there are two separate judgments in the Marks litigation. The second judgment is reported as Marks (No 2). The Department made the following observations in respect of that judgment:

1. The Panel determined there that, if an assessment had been made applying Guideline [11.10], there would have been 0% pre-existing impairment, which was inconsistent with authorities concerning the assessment of a deduction under s 323 of the 1998 Act. The Panel concluded that there should be a ¼ deduction on the basis that the earlier condition had made the worker more vulnerable and contributed to the impairment resulting from the work-related condition.

2. Simpson AJ considered authorities which held that an pre-existing condition which is asymptomatic at the time of injury may nevertheless contribute to the degree of impairment: Marks (No 2) at [17]–[20].

3. To the extent that there is inconsistency between Guideline [11.10] and s 323 of the 1998 Act, Simpson AJ held that s 323 prevails. Guideline [11.10] was found to be inconsistent with s 323 and invalid to the extent that it excludes, in the application of s 323(1) of the 1998 Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment of a pre-existing but asymptomatic condition.

28. The Department submits that the principles enunciated in Marks (No 2) are of general application, and that what is required is consideration of the extent to which the pre-existing condition has contributed to the ultimate impairment. It says that it is incorrect to approach the task by simply asking, “what was the pre-existing impairment?”

29. The Department claims that the Panel did not “take the step of explaining what it understood by the decision in Marks”. Rather, it implemented a “simple application” of Guideline [11.10], without any consideration of Marks (No 2) nor of the steps required to assess a deduction under s 323 as set out in the decision of Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 (and followed in other cases thereafter). It says that there was no consideration by the Panel of the question whether Ms Lewandowski’s pre-existing condition contributed to her current impairment and, if so, what proportion of the impairment was due to the pre-existing condition.

30. Finally, the Department submits that Ms Lewandowski’s work injury can only be an aggravation of an already symptomatic pre-existing condition and that the deduction would be greater than 10% (noting that in Marks (No 2) it was 25% for an asymptomatic pre-existing condition).

Ms Lewandowski’s submissions

31. Ms Lewandowski emphasised the Panel’s finding that the available medical evidence did not support any particular finding being made as to an appropriate deduction for a pre-existing condition and, accordingly, a figure of 10% under s 323(2) of the 1998 Act was not at odds with the available evidence. She submits that the Department’s complaint as to the amount of the deduction is a complaint about the merits of the decision that cannot attract judicial intervention unless the Department can demonstrate error of law on the face of the record and/or jurisdictional error.

32. In relation to Marks (No 2), Ms Lewandowski submits the following:

1. Simpson AJ’s reasoning was directed to an asymptomatic pre-existing condition. In contrast, the Panel here made a finding of fact that Ms Lewandowski’s pre-existing condition was symptomatic at the time of injury.

2. Ms Lewandowski accepted that Simpson AJ rejected the plaintiff’s argument in that case that Guideline [11.10] ought to apply to his pre-injury asymptomatic condition.

33. Given the absence of cogent and persuasive evidence for a deduction on any other basis, Ms Lewandowski submits that the Panel’s approach in deducting 10% was not erroneous.

34. In the alternative, Ms Lewandowski submits that if there was a technical defect in the Panel’s approach, the Court should not grant the relief claimed given the weakness of the Department’s case on the merits.

An evidentiary ruling

35. Ms Lewandowski objected on the ground of relevance to the admissibility of multiple exhibits to an affidavit of Ms Kim Ebbeck sworn on 12 October 2022, with the exception of the exhibit comprising the Panel’s decision and accompanying statement of reasons.

36. In accordance with well-established authority, I admitted into evidence all the exhibits to Ms Ebbeck’s affidavit which, I was informed, constituted material which was before the Panel when it made its decision.

Relevant statutory provisions

37. There is a comprehensive analysis of the statutory scheme in Elcheikh at [7]–[31] per Schmidt J and in Marks at [5]–[12] per Simpson AJ. The key relevant features (taking into account amendments in 2020 necessitated by the creation of the Commission) are as follows.

38. Section 65(1) of the 1987 Act provides that the degree of permanent impairment that results from an injury is to be assessed as provided by that section and Pt 7 of Ch 7 of the 1998 Act. By s 66 of that Act, where permanent impairment is greater than 10% from an injury arising out of or in the course of employment, the person is entitled, in addition to any other compensation under that Act, to “permanent impairment compensation” in a lump sum calculated in accordance with that section.

39. Part 7 of Ch 7 of the 1998 Act provides for the making of assessments by which compensation is to be determined. Section 321 provides for the referral of a “medical dispute” for assessment by a medical specialist. The concept of “medical dispute” is relevantly defined in s 319 as:

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

…

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

(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,

…

40. Section 4(1) of the 1998 Act contains various relevant definitions, including of “claim” and “injury”.

41. Section 322 of the 1998 Act describes the assessment which an approved medical specialist is required to undertake where there has been a referral of a medical dispute. It relevantly provides:

322   Assessment of impairment

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

…

42. The Guidelines in force at the relevant time are the reissued fourth edition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Guidelines) as made under s 376 of the 1998 Act (and the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5)), which apply to assessments of permanent impairment after 1 March 2021.

43. Section 323 of the 1998 Act provides for the making of a deduction from the assessed impairment resulting from the injury for any proportion of the impairment found to be due to any previous injury or pre-existing condition (notes omitted):

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.

(3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor 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.

44. The approved medical specialist is required to issue a medical assessment certificate which contains the matters specified in s 325(2). Such a certificate is presumed to be conclusively correct as to the matters specified in s 326(1).

45. Section 327 of the 1998 Act give limited rights of appeal against a medical assessment. It relevantly provides:

327 Appeal against medical assessment

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

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

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

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

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

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

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

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

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

…

46. Under s 328 of the 1998 Act, an Appeal Panel (which must be constituted by two approved medical specialists and one member assigned to the Workers Compensation Division of the Commission) has the power to confirm or revoke the assessment, or issue a new assessment. The appeal is by way of review of the original medical assessment but is limited to the grounds of appeal on which the appeal is made (see s 328(2)).

47. It is relevant to note the following parts of the Guidelines:

PART 2 – PRINCIPLES OF ASSESSMENT

1.6    The following is a basic summary of some key principles of permanent impairment assessments:

a.   assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:

•   whether the condition has reached Maximum Medical Improvement (MMI)

•   whether the claimant’s compensable injury/condition has resulted in an impairment.

•   whether the resultant impairment is permanent.

•   the degree of permanent impairment that results from the injury.

•   the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.

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.

c.   In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. …

d.   The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought.

…

48. The Guidelines also have their own provisions (which exclude the application of AMA5) in relation to psychiatric and psychological disorders. They are set out in Ch 11 of the Guidelines and include the following:

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.

…

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 levels. 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 percent 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 1/10^th of the assessed WPI.” 

49. Tables 11.1 to 11.6 set out the PIRS with respect to six subject matters. They are used by assessors in assessing the degree of permanent impairment of a claimant caused by psychiatric or psychological disorders.

Consideration and determination

50. The central issue is whether [63] of the Panel’s statement of reasons (see at [21(3)] above) discloses reviewable error (ie either jurisdictional error or error of law on the face of the record). For the following reasons, I consider that both these errors are established.

51. First, it is well-settled that s 323 of the 1998 Act requires a medical assessor or a Panel hearing an appeal to reach a conclusion as to whether or not any proportion of permanent impairment assessed has resulted from an earlier injury, pre-existing condition or abnormality. Moreover, that conclusion must generally be reached on the evidence adduced concerning the actual consequences of the earlier and later injury (unless the assumption provided for in s 323(2) applies). It is well to set out the following relevant paragraphs from Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [29]–[31] per Schmidt J (emphasis added):

[29]   As the plaintiff argued, to so approach the exercise required to be undertaken by s 323, was to fall into an error of law. The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.

[30]   Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.

[31]   The reason for this statutory approach can readily be seen. It is entirely possible that a person could suffer such a catastrophic injury, that the presence or absence of any previous injury, pre-existing condition or abnormality, would make no difference at all to the impairment which resulted from the later injury. An injury which results in death, is an obvious example, albeit not one which would arise for consideration under this section. A more relevant example, in this case, is a second injury which severed the spine. Or, as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case. An assumption of the kind here made, namely that surgery to the lumber spine, irrespective of outcome, must always result in a level of residual impairment which contributes to the level of impairment which follows a later injury, has no role to play in that assessment. What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.

52. Her Honour affirmed those principles in Elcheikh and summarised the relevant steps to be taken under s 323 at [126]:

As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:

•  Firstly, what the extent of the resulting impairment is.

•  Secondly, whether the pre-existing condition contributed to the impairment.

•  Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.

53. Secondly, as the Department’s counsel appeared to accept in oral address, the claimed error evident in [63] of the Panel’s reasons does not turn on Marks (No 2). Indeed, for the reasons given above, there must be serious doubt whether the Panel was referring to that judgment or Simpson AJ’s earlier judgment in Marks.

54. Thirdly, I consider that the Panel fell into jurisdictional error because, instead of acting consistently with the approach identified in Cole and Elcheikh, the Panel failed to determine what proportion of Ms Lewandowski’s pre-existing PTSD condition contributed to her impairment. The Panel erred by asking itself the wrong question (see Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58). Alternatively the error can be expressed as the Panel applying the wrong legal test (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41]). This is evident from [63] of its reasons where, after determining that the PTSD caused by the restaurant experience as “a minor or background causative factor”, the Panel then turned its attention to whether Ms Lewandowski’s pre-existing impairment could be measured in accordance with the PIRS. The Panel focused its attention not on the proportion of Ms Lewandowski’s impairment which was due to her PTSD, but rather on whether the impairment produced by the PTSD could itself be measured. This was the wrong legal test, which flowed from the Panel asking itself the wrong question. This constitutes jurisdictional error.

55. It is evident from [62] and [63] that the Panel was conscious of the need to address whether the pre-existing PTSD condition contributed to her impairment but instead of analysing the available medical evidence relating to the issue of contribution, the Panel was distracted from the relevant legal task by its consideration of whether Ms Lewandowski’s pre-existing impairment could be measured according to the PIRS.

53. Fourthly, the legal error also appears on the face of the record (see s 69(4) of the Supreme Court Act).

54. Finally, contrary to Ms Lewandowski’s submissions, I do not regard this error to be immaterial or that there is no utility in remitting the matter for consideration according to law. It is not for a Court on judicial review to determine the merits of the matter. That is the Panel’s task in considering an appeal according to law. It may be that, on the remitter, and after having actively and properly engaged with the relevant medical evidence, the Panel concludes that the conditions to s 323(2) of the 1998 Act are engaged and a reduction of 10% for pre-existing impairment is appropriate. But it is possible that the Panel may not come to that view. Accordingly, I decline in the exercise of my discretion not to grant judicial review relief.

Conclusion

58. For these reasons, the following relief should be granted:

1. The second defendant’s decision dated 15 July 2022 be set aside.

2. The matter be remitted to the third defendant to enable the appeal to be redetermined according to law.

3. There be no order as to costs (neither party sought costs).

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Decision last updated: 05 April 2023