Secretary, Department of Communities and Justice v Topic

[2020] NSWSC 1824

Supreme Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Communities and Justice v Topic [2020] NSWSC 1824

Hearing dates:

11 December 2020

Decision date:

15 December 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Dismiss the amended summons.

(2)   By consent, make no order as to costs.

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 327 — Decision of Registrar to refuse to refer appeal — Whether Registrar erred by determining substantive appeal rather than applying statutory test — Whether jurisdictional error

ADMINISTRATIVE LAW — Jurisdictional error — Whether Registrar erred in not finding that a ground of appeal under s 327 had been made out

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 63, 94

Supreme Court Act 1970 (NSW), s 69

Workers Compensation Act 1987 (NSW), ss 4, 65, 65A, 66

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 78, 105, 293, 294, 319, 322, 325–327, 331, 350, 378

Cases Cited:

Ballas v Department of Education (State of NSW) [2020] NSWCA 86

Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284

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

Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171

George v Rockett (1990) 170 CLR 104; [1990] HCA 26

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308

Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152

State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346

Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324

Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566

Texts Cited:

State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016)

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Plaintiff)
Rajka Topic (First defendant)
Registrar of the Workers Compensation Commission of New South Wales (Second defendant)

Representation:

Counsel:
B G McManamey (Plaintiff)
D Hooke SC / E Grotte (First defendant)
Submitting appearance (Second defendant)

Solicitors:
Moray & Agnew (Plaintiff)
Frisina Lawyers (First defendant)
Crown Solicitor’s Office (Second defendant)

File Number(s):

2020/188108

Judgment

Introduction

1. By summons filed on 25 June 2020, the Department of Communities and Justice, the plaintiff (the employer), seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) in respect of decisions of the second defendant, the Registrar of the Workers Compensation Commission of New South Wales (the Registrar).

2. On 1 April 2020 the Registrar, by his delegate, Parnel McAdam, determined that he was not satisfied that at least one of the employer’s grounds of appeal against the decision of Dr Patrick Morris, the Approved Medical Specialist (the AMS), had been made out and, accordingly, did not allow the employer’s appeal to proceed. The decision of the AMS in respect of which the employer appealed was the assessment of the % Whole Person Impairment (% WPI) of Rajka Topic, the first defendant (the claimant). The employer applied for a reconsideration of the Registrar’s decision. On 15 May 2020, the Registrar decided not to reconsider the earlier decision on the grounds that it was correct. The employer seeks relief in relation to the Registrar’s decisions made on 1 April 2020 and 15 May 2020.

3. The claimant is the only active defendant as the Registrar has filed a submitting appearance.

4. 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). The Workers Compensation Act 1987 (NSW) will be referred to as the 1987 Act.

The factual background

The various claims made by the claimant

5. The claimant claimed to have suffered injuries in the course of her employment on 31 October 2004. The claimant made a claim for compensation for permanent impairment pursuant to s 66 of the 1987 Act.

6. In 2009 the claimant was paid a lump sum following the assessment of her % WPI arising from these injuries.

7. On 21 November 2018 the claimant made a claim for further lump sum compensation under s 66 of the 1987 Act on the basis of physical injuries sustained on 31 October 2004 (the physical injuries claim).

8. On 5 February 2019 she made a further claim for permanent impairment based on an alleged psychological injury sustained as a result of the nature and conditions of her employment between 31 October 2004 and 26 January 2006 (the nature and conditions claim). The employer referred these claims to its insurer, QBE Insurance (Australia) Ltd (the insurer).

9. On 11 March 2019 the insurer issued a notice pursuant to s 78 of the Act (a s 78 notice) denying liability for the physical injuries claim. On 17 May 2019, the insurer issued a s 78 notice denying liability for the nature and conditions claim.

10. On 9 October 2019 the claimant filed in the Workers Compensation Commission (the Commission) an application to resolve a dispute relating to these two claims for lump sum compensation. The insurer filed its reply dated 30 October 2019.

The consent orders made on 27 November 2019

11. On 27 November 2019 Arbitrator Perrignon made consent orders in the Commission pursuant to s 294 of the Act and a notation as follows:

“The Commission determines:

1.    The claim for compensation as a result of injury to, or consequential condition of, the left upper extremity is discontinued.

2.    Finding by consent, that as a result of the events of 31 October 2004, the applicant has suffered both primary and secondary psychological injury.

3.    The matter is remitted to the Registrar for referral to an approved medical specialist to assess the following:

a.    Whole person impairment (cervical spine, right upper extremity) as a result of injury on 31 October 2004.

b.    Whole person impairment (psychological) as a result of injury on 31 October 2004, in respect of which the approved medical specialist is to be asked to assess only the impairment resulting from the primary psychological injury, and to exclude from the assessment any impairment which in the view of the approved medical specialist results from the secondary psychological injury.

c.    Whole person impairment (psychological) as a result of injury due to the nature and conditions of employment from December 2004 to 26 January 2006.

Notations

The following are not determinations of the Commission, but I note the parties agree as follows.

a. In respect of psychological injury due to the nature and conditions of employment from December 2004 to 26 January 2006, the respondent no longer relies on section 11A of the Workers Compensation Act 1987.”

The referrals for assessment

12. On 29 November 2019 the matters in 3b and 3c above were referred to the AMS for assessment:

“…

•   The degree of permanent impairment of the worker as a result of an injury (s 319(c))

•   Whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d))

•   Whether impairment is permanent (s 319(f))

•   Whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319(g)).”

13. The AMS examined the claimant on 17 January 2020. In a certificate dated 30 January 2020, he assessed the claimant’s % WPI as a result of her psychological injury as 0% arising from the injury on 31 October 2004 and 15% due to the nature and conditions of her employment from December 2004 to January 2006.

14. In his reasons which were attached to the certificate, the AMS noted that he was to assess the % WPI arising from the injuries on 31 October 2004 and from the nature and conditions of employment from December 2004 to 26 January 2006. He described the documents with which he had been provided, which included the consent determination made by the arbitrator.

15. The AMS recorded the history of the claimant having been attacked by a resident in a house operated by the employer. He recorded that, after the attack, she was able to drive home. She saw her general practitioner the following morning. The AMS recorded:

“At that time she described feeling very shaken and upset and anxious. She also had neck pain and right arm pain and was having headaches. She was prescribed Valium for her anxiety and prescribed analgesic medication for her pain by her GP. She returned to her work as a residential support worker, after a few days off work. She said she felt more anxious and fearful at work and her sleep was not as good as previously. She returned to work for two weeks and then had some rostered time off work over the Christmas-New Year period.”

16. The AMS recorded the following history for the nature and conditions injury:

“Ms Topic said she returned to work in mid-January 2005 and found that allegations had been made that she had assaulted a client. She said that these allegations had been made by a client who had a history of exaggerating and lying and apparently had been put up to this behaviour by another staff member. She said the complaint went to management. She said that she was removed from the residential care house where she was working and had to work in the regional office until the investigation was completed. She said she was asked to work in reception and answer the phones initially and then she was placed in a very small room with nothing to do. She was then asked to sort heavy files in a room for two days. Whilst doing this work she complained of severe neck pain and she saw her GP who put her off work on a medical certificate in February 2005. She did not return to work as a residential care worker after that. Later in 2005 she had to attend court three times before being found not guilty of assault of the client in May 2005. She felt upset over the way she had been treated by her employer and felt totally unsupported by management over that period.

During 2005 Ms Topic became depressed, anxious and angry and was sleeping poorly. She had a reduced appetite and had lost weight. She described feeling ‘helpless’. She reported having no enjoyment in life and would just spend her days inside her home unit. She reported having reduced energy and motivation and very poor sleep. She reported having very poor concentration. She said that she felt hopeless and that life was not worth living and had made two suicide attempts through overdoses. She also felt very agitated, stressed and worried and thought that something awful would happen to her.

In 2005 she said that her GP commenced her on some antidepressant medication of which she did not know the name. Her GP also referred her to a Psychologist Jason Mueller whom she said she saw on a monthly basis from 2006 to 2017. She said she found the sessions helpful but her symptoms continued.

Ms Topic said she was referred to a psychologist, Dr Roberts in 2008 whom she saw on about four occasions and then saw him for a few times two years later. She had not seen him since 2010-2011. He had treated her with some medication but she could not remember the name of it. She said that she had been on various antidepressant medications since 2008. She has been on Cymbalta 90mg per day for over eight years and Allegron 25mg at night for a long period than that. Despite being on these medications Ms Topic feels her symptoms have worsened in the past two years.”

17. In his summary, the AMS said:

“In my opinion Ms Topic has the condition of Major Depressive Disorder according to DSM-5 diagnostic criteria. This condition emerged after work-related stressors in 2005 and has continued despite her being on antidepressant medication over a long period.”

18. In his reasons for assessment, the AMS said:

“I have been asked by the Arbitrator, Mr R J Perrignon to make two assessments of whole person impairment.

The first assessment is for ‘whole person impairment (psychological) as a result of injury on 31 October 2004 in respect of which the approved medical specialist is to be asked to assess only the impairment resulting from the primary psychological injury, and to exclude from the assessment any impairment which in the view of the approved medical specialist results from the secondary psychological injury’.

I am not of the opinion there is any whole person impairment as a result of the injury on 31 October 2004. I note that Ms Topic returned to work after some time off because of her neck pain. Although she was more anxious and fearful at work, she was coping with her work at that time. She reported no impairment at that time in her self-care and personal hygiene, social and recreational activities, social functioning or her concentration and memory. It was only after the allegations of assault were made against her in January 2005, and her work situation changed leading up to her injuring her neck whilst lifting heavy files in February that her Major Depressive Disorder began.

I have also been asked to assess ‘whole person impairment (psychological) as a result of injury due to the nature and conditions of employment from December 2004 to January 2006’.

I am of the opinion that Ms Topic's condition of Major Depressive Disorder was caused by the nature and conditions of her employment during this period of time. She believed that a fellow worker was behind the allegations made against her by a resident of the service who had a history of exaggerating and lying, according to Ms Topic. She had to stop working in the residential care unit where she had been working while the charges were being investigated. She was asked to work in the head office including what she said a period by herself in a small room and then lifting heavy files which injured her neck. She also felt very unsupported by the management during this period. She was found not guilty on all of the charges. In my opinion, it was her experience of how she was treated by her employer in the period from December 2004 to January 2006 which was the cause of her Major Depressive Disorder and her level of whole person impairment which I have rated as 15%.”

19. On 26 February 2020 the employer lodged an appeal against the AMS’s decision on two grounds: the assessment was made on the basis of incorrect criteria and that the Medical Assessment Certificate (the MAC) contained a demonstrable error. In substance, the employer submitted that the AMS had made findings contrary to the Certificate of Determination issued by the Arbitrator on 27 November 2019 and that, despite the orders set out in the Certificate of Determination, the AMS had failed to consider whether any % WPI flowed from the secondary psychological injury sustained by the claimant on 31 October 2004.

20. On 13 March 2020 the claimant lodged a notice of opposition to the appeal against the decision of the AMS, together with written submissions.

The Registrar’s decision of 1 April 2020

21. On 1 April 2020, the Registrar determined that as he was not satisfied that at least one of the grounds of appeal as specified in s 327(3) had been “made out” (as provided for in s 327(4) of the Act), the appeal was not to proceed. This is the first decision in respect of which the employer seeks relief under s 69 of the Supreme Court Act.

22. At the commencement of his reasons, the Registrar set out the task required to be performed in the following terms:

“My role and powers in making this decision are exercised under s 327 of the 1998 Act. They have been described as those of a ‘gatekeeper’: Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 (Marina Pitsonis). In Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 (Kolundzic), Campbell J at [51] provided the following summary of the role of the registrar:

‘As has been said, the Registrar performs a gatekeeper function: Campbelltown City Council v Vegan [2006] NSWCA 284; 57 NSWLR 372 at [8] and [82]. His or her power is to determine whether on the face of the application and any submissions made ‘at least one of the grounds of the appeal specified in subsection (3) has been made out’. This is a precondition to an appeal involving an evaluative decision that at least one ground, on its face, is ‘valid and apparently credible’: Vegan at [8].’”

23. The Registrar proceeded to address the employer’s grounds.

The first ground: that the AMS had impermissibly made findings of causation

24. The first ground was that the AMS had made findings of causation (that the Major Depressive Disorder from which the claimant suffered was caused by the nature and conditions of her employment and not by the assault on 31 October 2004) and that he was not entitled to make such findings, having regard to the terms of the consent orders. The Registrar said, at paragraph 14 of his reasons:

“I do not accept that the AMS has exceeded his jurisdiction…”

25. The Registrar referred to authorities, including Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (Bindah), which endorse the entitlement of an AMS to make findings of causation where required to fulfil the task of assessing % WPI. At paragraph 17 of his reasons, the Registrar said:

“… Nowhere does he [the AMS] say that Ms Topic did not suffer an injury on 31 October 2004. Rather, the AMS has determined that the more significant cause of Ms Topic’s currently presenting Major Depressive Disorder was her treatment by management during the period from 2004 to 2006, rather than the assault on 31 October 2004. The AMS has not made a finding of injury, but rather has answered a question of medical causation, that is what is the cause of Ms Topic’s Major Depressive Disorder.”

26. The Registrar extracted the AMS’s reasons for concluding that the diagnosis of Major Depressive Disorder arose from the nature and conditions of the claimant’s employment from December 2004 to January 2006. He said, at paragraph 24 of his reasons:

“Nothing in the AMS’s reasons is controversial or inconsistent with his role. This ground of appeal is not made out.”

The second ground: failure to address the correct question

27. The second ground raised by the employer was that the AMS failed to address the question of whether any secondary psychological symptoms flowed from the assault on 31 October 2004. The Registrar set out the employer’s submission as follows:

“25. The appellant submits that the AMS failed to properly address the question of ‘whether any secondary psychological symptoms flowed from the assault on 31 October 2004’. This involves an application of section 65A of the 1987 Act, which relevantly provides:

‘(1)    No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.

(2)    In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.’”

28. After addressing the AMS’s reasons, the Registrar said at paragraph 34:

“Finally, and most importantly, there is an air of illogicality to the appellant's submissions. The AMS concluded that there was no impairment attributable to the injury on 31 October 2004. This conclusion clearly covers both the primary and secondary psychological injury that occurred on that date. For the AMS to then assess any impairment flowing from a secondary psychological injury on that date would be inconsistent with his overall conclusion that Ms Topic was relatively fine until the incidents from December 2004 to January 2006 that resulted in her suffering a Major Depressive Disorder and ultimately an assessment of impairment of 15%.”

29. The Registrar extracted passages from the expert reports which were before the AMS and concluded:

“39.    As can be seen there is a variance in opinion concerning what injury Ms Topic's current impairment is attributable to. The doctors that have assessed Ms Topic have all had difficulty separating the incidents.

40.    The AMS considered the various opinions in great detail on pages 6-8 of the MAC and reached his own conclusion. In apportioning all of the impairment to the incidents from December 2004 to January 2006, he was exercising his jurisdiction as he was entitled to do. He considered relevant information and explained why he disagreed with the other opinions. His reasons follow a logical path.

41.    The AMS has not failed to acknowledge the pain condition or the secondary psychological condition as submitted by the appellant. He has acknowledged it and made his own determination. That the determination was not favourable to the appellant is not a demonstrable error.

42. As I am not satisfied that at least one of the grounds of appeal as specified in section 327(3) has been made out, the appeal is not to proceed.”

The Registrar’s reconsideration decision of 15 May 2020

30. On 24 April 2020, the employer filed an application for reconsideration of the Registrar’s decision of 1 April 2020. The employer relied on the extensive material about the existence of the secondary psychological injury and submitted that the AMS had failed to properly consider the role played by the claimant’s secondary psychological symptoms flowing from the assault on 31 October 2004. The employer also contended that the Registrar had applied the wrong test and had purported to determine the appeal rather than to fulfil the gateway role. The claimant opposed the employer’s application for reconsideration in a response filed on 8 May 2020.

31. On 15 May 2020, the Registrar refused the employer’s application for reconsideration. He rejected the employer’s submission that it was necessary to decide whether a secondary psychological injury arising out of earlier circumstances could be excluded by a later primary psychological injury. The Registrar considered that because the AMS had concluded that there was no impairment attributable to the injury on 31 October 2004, this comprised a finding that there was no impairment attributable to a secondary psychological injury on that date. This is the second decision in respect of which the employer seeks relief in this Court.

32. At the commencement of his reasons, the Registrar identified the source of power for the reconsideration of his earlier decision: s 378 of the Act. He also considered whether he (as the original delegate, Mr McAdam) should be the person to decide the application for reconsideration. He referred to Practice Direction 17 – Reconsideration Applications and said, at paragraph 14 of his reasons:

“Importantly, at [19] of the Practice Direction: ‘If the Registrar accepts the reconsideration application, the matter will usually be determined by the original decision maker.’ There is judicial support for the conclusion that the original decision maker is the appropriate person to determine the reconsideration application, bar situations where the doctrine of necessity arises (see Cameron v Registrar of the Workers Compensation Commission of New South Wales [2008] NSWSC 704 and Altos v Registrar of the Workers Compensation Commission of NSW [2008] NSWSC 148). I see no reason to depart from the position.”

33. Under the heading, “The reconsideration application”, the Registrar said:

“17.    The appellant makes a number of submissions, some previously made and reiterated, and some clarified. I will deal with the submissions on reconsideration in the order they are presented. In the intervening period between the issue of my original decision and this reconsideration, the Court of Appeal has issued the decision of Ballas v Department of Education (State of NSW) [2020] NSWCA 86. The Court discussed the language of section 327 of the 1998 Act and the role of the Registrar in determining whether a ground of appeal has been ‘made out’. The Court said that ‘this process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable.’

18.    For abundant clarity, lest my words that I was not satisfied that a ground of appeal was made out (being the language of the section) being misconstrued, I was not satisfied, and am not satisfied, that the case put forward by the appellant is arguable.

19.    Firstly, the appellant submits that it was necessary to decide whether a secondary psychological injury arising out of earlier circumstances can be excluded from a later primary psychological injury, with reference to [29] of my decision.

20.    I do not accept that it is necessary to decide. …

24.   I did not accept this submission on appeal and my view is not changed by the submissions on reconsideration. The AMS did complete the task above, in determining that ‘I am not of the opinion there is any whole person impairment as a result of the injury on 31 October 2004’. I addressed this aspect of the appellant's submission at first instance at [34] of my decision. The conclusion that there was no whole person impairment as a result of the injury on 31 October 2004 by necessity indicates that there is no impairment arising from the secondary psychological injury that also arose on that date. …

26.   …In both cases, he has determined that the impairment flowing from the injury on 31 October 2004 was nil. This is the only logical reading of his reasons.”

34. The Registrar said further:

“56.    … The AMS did not specifically determine that Ms Topic was ‘relatively fine’. He did, however, determine that she was more anxious and fearful at work but was coping at work following the injury of 31 October 2004. Only after the allegations of assault were made against her did she deteriorate and being to suffer from her Major Depressive Disorder.

57.    The above findings were open to the AMS and his reasons follow a logical path.

58.    The appellant's next submission is that the ground of appeal raised in its application was that the AMS failed to properly consider the role played by the worker's secondary psychological symptoms. I did not accept this ground was arguable in my initial decision. The AMS clearly considered the effects of the 31 October 2004 injury in terms of permanent impairment and concluded that Ms Topic had no impairment flowing from that injury. As has been stated, this finding was open to him.”

35. The delegate concluded:

“61.    Finally the appellant submits that the complexity of the issues (along with the submissions on reconsideration) mean that an order be made that the appeal proceed to an Appeal Panel. I acknowledged the complexity of the referral at [35] of my decision. In any event, no matter how complex the issues may be, complexity is not the basis of an appeal, nor does it constitute an arguable case of error. Despite the complexity of the referral, the AMS has performed the task required of him and his conclusion is clear and logically expressed.”

36. On 22 June 2020, three days before the summons was filed, the Commission issued a certificate of determination in which it determined, in accordance with the assessments by Dr Crane (who assessed % WPI from physical injuries) and by the AMS, that the claimant had suffered 8% permanent impairment resulting from a physical injury on 31 October 2004 and 15% permanent impairment resulting from a psychological injury due to the nature and conditions of her employment from December 2004 to 26 January 2006. The Commission ordered the employer to pay to the claimant $3,750 in respect of further permanent impairment from the physical injury on 31 October 2004 and $20,000 in respect of the psychological injury sustained between 2004 and 2006.

37. It was not suggested by either party that the certificate of determination issued on 22 June 2020 affected this Court’s jurisdiction to review the Registrar’s decisions under s 69 of the Supreme Court Act.

Relevant statutory provisions

The 1987 Act

38. Section 4 of the 1987 Act relevantly defines “injury” as a “personal injury arising out of or in the course of employment”. Section 4 of the Act defines injury in the same terms.

39. Section 65 of the 1987 Act provides:

“65      Determination of degree of permanent impairment

(1)     For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(2)     If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.

Note—

The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.”

40. I note for completeness that s 65(3) of the 1987 Act, which formed part of the basis for the decision of the Court of Appeal in Bindah, provided (until its repeal, which became operative on 1 January 2019) that:

“(3)    If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”

41. This provision would not have been relevant in any event as, in the present case, it was common ground that the arbitrator had not purported to assess the degree of permanent impairment and that such assessments had been referred to the AMS for assessment.

42. Section 65A of the 1987 Act provides:

“65A      Special provisions for psychological and psychiatric injury

(1)     No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.

(2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.

(3)     No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.

Note—

If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.

(4)     If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—

(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65(2)),

(b)     the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),

(c)     the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.

Note—

If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.

(5)     In this section—

primary psychological injury means a psychological injury that is not a secondary psychological injury.

psychological injury includes psychiatric injury.

secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”

43. Section 66 of the 1987 Act relevantly provides:

“66      Entitlement to compensation for permanent impairment

(1)     A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

Note—

No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.

(1A)     Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.

…”

The Act

44. Section 78 of the Act requires an insurer to give notice of any decision it makes to dispute a claim.

45. Section 105 of the Act relevantly provides:

“105      Jurisdiction of Commission and Compensation Court

(1)     Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.

…”

46. It was accepted that the Commission had exclusive jurisdiction to determine whether an injury has been sustained in the course of employment. Part 7 of the Act, entitled “Medical Assessment” provides for the determination of medical disputes which are defined in s 319 which is set out below.

47. Section 293 of the Act relevantly provides:

“293      Medical assessment

(1)     When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may (subject to the regulations under section 321A (Referral of medical dispute concerning permanent impairment)) refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.

…”

48. Section 294 of the Act relevantly provides:

“294      Certificate of Commission’s determination

(1)     If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.

(2)     A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.

…”

49. Section 319 relevantly provides:

“…

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

…

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

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

…

(f)     whether impairment is permanent,

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

50. Section 322(1) of the Act provides that the assessment of the degree of permanent impairment of an injured worker for the purposes of the 1987 Act is to be made in accordance with the guidelines issued for that purpose. It was common ground that the relevant guidelines were the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines).

51. Section 325 relevantly provides:

“325   Medical assessment certificate

(1)     The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.

(2)     A medical assessment certificate is to be in a form approved by the Registrar and is to—

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

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

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

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

…”

52. Pursuant to s 326 of the Act, the assessment is conclusively presumed to be correct as to certain matters, including the degree of permanent impairment as a result of an injury.

53. Section 327 of the Act 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 an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

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

…

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

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

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

…

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

Note—

Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

…”

54. Section 331 of the Act relevantly provides that medical assessments and appeals under Part 7 of the Act are subject to the Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.

55. Section 350 of the Act provides:

“350   Decisions of Commission

(1)     Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.

(2)     A decision of or proceeding before the Commission is not—

(a)     to be vitiated because of any informality or want of form, or

(b)     liable to be challenged, appealed against, reviewed, quashed or called into question by any court.

(3)     The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

56. Section 371 of the Act relevantly provides:

“371      Functions of Registrar

(1)     The Registrar has and may exercise all the functions of an Arbitrator.

(2)     The Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.

…”

57. Section 378 of the Act relevantly provides:

“378      Reconsideration of decisions of Registrar or Appeal Panel

(1)     The Registrar … may reconsider any matter that has been dealt with by the Registrar … and rescind, alter or amend any decision previously made or given.

…”

The grounds of review

58. The plaintiff relied on the following grounds of review, which are set out in paragraph 2 of its summons:

“(a)    The Delegate of the Registrar erred in point of law when he failed to properly consider the submissions put to him by the Plaintiff.

(b)    The Delegate of the Registrar erred in point of law when he decided the appeal rather than considered whether the grounds for appeal had been made out.

(c)    The Delegate of the Registrar erred in point of law when he failed to properly consider the effect of the binding determination that the first defendant suffered from both a primary and a secondary psychological injury as a result of the events on 31 October 2004.

(d)    The Delegate of the Registrar erred in point of law when he failed to consider that it was arguable that the effects of a secondary psychological injury can be excluded from the effects of a later primary psychological injury.

(e)    The Delegate of the Registrar erred in point of law when he decided the appeal because he thought that chronic pain was not a psychiatric diagnosis when there was a finding that the first defendant suffered from a secondary psychological injury.

(f)    The Delegate of the Registrar erred in point of law when he failed to consider that it was arguable that the Approved Medical Specialist had made an impermissible finding about the injuries he was asked to assess.

(g)    The Delegate of the Registrar erred in point of law when he considered that a finding about the cause of the first defendant’s Major Depressive Disorder was not a finding about injury.

(h)    The Delegate of the Registrar erred in point of law when he considered that the finding of the Arbitrator was that there was a secondary psychological injury which occurred on 31 October 2004 when the finding was that there was a secondary psychological injury as a result of the events on 31 October 2004.”

59. Because of the substantial overlap between these grounds, I propose to address them by reference to the submissions put by Mr McManamey who appeared on behalf of the employer.

Consideration

General principles

The Registrar’s role

60. The Registrar’s role in performing the statutory function conferred by s 327(4) has been described as that of a gate-keeper. In deciding whether to refer an application to an Appeal Panel, the Registrar is to look at the capacity of the appeal ground to be made out (that is, whether there is an arguable case of error) and is not to determine the appeal: Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [83] (Gleeson JA, Macfarlan JA and Barrett AJA agreeing) and Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) at [67] (Bell P and Payne JA) and [150] (Emmett AJA).

61. The words in s 327(4) refer to the Registrar’s satisfaction that at least one of the grounds “has been made out”. These words are apt, in other contexts, to connote a final decision about grounds and are commonly used by appellate courts when expressing conclusions about grounds. However, it is plain from the Act as a whole and the wording of s 327 that the Registrar is merely a gateway and not the final arbiter.

62. Thus, a Registrar who purports to determine the appeal, when exercising the function under s 327(4), is acting in excess of jurisdiction.

63. In Ballas, the plurality said at [72]:

“An assessment of arguability, to adopt and adapt the language of Gleeson JA in Vannini, is a very different exercise, as the Registrar or his or her Delegate is required to make that assessment ‘on the face of the application, and in any submissions made to the Registrar’: at [19]. It involves an assessment and satisfaction that an argument to support the nominated grounds is manifest in those two documents. If it is, that argument passes the gatekeeper and goes to the expert Appeal Panel. This process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable.”

The reasons of the Registrar

64. It was common ground that there were no express statutory provisions which required the Registrar to give reasons for his decision to refuse to refer the matter to the Appeal Panel or for his reconsideration of that decision. However it was also common ground that the Registrar was subject to an implied statutory obligation to give reasons for both decisions. The parties assumed that this followed from Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (Vegan). It is not necessary for present purposes to decide whether this mutual assumption is correct since the Registrar did give reasons for his original decision and his reconsideration.

65. I also understood it to be common ground that the Registrar’s reasons would not form part of the record as they did not fall within s 69(4) of the Supreme Court Act, both because the Registrar’s decision did not constitute an “ultimate determination” and because the Registrar would not be regarded as a “court or tribunal”. Neither party contended that the Registrar’s reasons would form part of the record on the basis of the reasoning in Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 at [27] (Leeming JA, Tobias AJA agreeing), which depended on there being an express statutory provision (in that case, s 94(5) of the Motor Accidents Compensation Act 1999 (NSW)) which provided that the reasons were to form part of the certificate: cf. Craig v State of South Australia (1995) 184 CLR 163 at 181–3; [1995] HCA 58.

66. However, I understood Mr McManamey to rely on the reasons as evidencing jurisdictional error. Mr Hooke SC, who appeared with Ms Grotte for the claimant, accepted that the Registrar’s reasons could be used to detect jurisdictional error.

Applications for review of ‘gateway’ decisions

67. Basten JA in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 (Dominice) addressed applications for review of gateway decisions in the analogous statutory context of the Motor Accidents Compensation Act 1999 (NSW). His Honour said:

“[4]   … [T]he appellant’s case was based on four inter-related assumptions which were inadequately explored.

[5] The first was an assumption that judicial review was available in relation to a decision of the proper officer referring an application for review. A writ of certiorari was, historically, available only to quash the legal effect or the legal consequences of a decision or order under review. Under s 63 of the Motor Accidents Compensation Act, each party was entitled to seek referral to a review panel on the ground that the assessment was incorrect in a material respect. The role of the proper officer, who is not a medical assessor, is a protection for the party satisfied with the initial assessment from frivolous or insubstantial challenges to that assessment. The decision of the proper officer operates as a gateway to reviewing the correctness of the initial decision.

[6] The proper officer gave brief reasons for her decision, in compliance with the requirement in cl 14.8 of the Medical Assessment Guidelines, which have force pursuant to s 65(1) of the Motor Accidents Compensation Act.

[7]   Where the proper officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. Its effect may be to deny a claimant an opportunity to obtain damages for non-economic loss. However, when the error is said to have resulted in the failure of the proper officer to refuse a referral, the legal consequences are quite different. If the basis of her suspicion had been misconceived, one would expect that misconception to be identified by the review panel, which would dismiss the application and confirm the original certificate of assessment. A judge faced with a judicial review application in such circumstances, at least where the bona fides of the proper officer was not in question, would have strong reasons for rejecting the application on discretionary grounds.

[8]   The second assumption was that the reasonableness of the officer’s opinion was itself reviewable. As the primary judge correctly noted, it is the officer who must be satisfied that there was reasonable cause for suspicion that the first certificate was incorrect in a material respect. There was no suggestion in this case that the officer did not hold the opinion stated. It was submitted, however, that the opinion was unreasonable and therefore not valid. The basis on which it was said to be unreasonable was that the officer had misunderstood the operation of a clause in the Permanent Impairment Guidelines. That would not have established unreasonableness, but, possibly, error of law. Whether such an error would invalidate the opinion was not explored. The Guidelines were formulated in broad language and were directed to those responsible for undertaking medical assessments. Their operation was pre-eminently a matter for the proper officer to determine; there was no reason to suppose that the true construction of the Guidelines was something intended by the legislature to be determined by a court. Accordingly, even if the officer gave an interpretation or operation to cl 1.43 which was not the only available reading, that would not of itself reveal reviewable error.

[9] The third assumption was that the decision of the proper officer could be set aside because of error revealed in her brief written reasons. Although the appellant alleged error of law on the face of the record, that could only be established by reference to the written reasons given by the proper officer for referring the application to a review panel. Under the general law, those reasons would not have formed part of the record. It was, therefore, necessary for the appellant to rely upon s 69(3) and (4) of the Supreme Court Act. As explained in QBE v Miller, a challenge to the decision of a proper officer to refer an application for review to a review panel does not involve a challenge to the ‘ultimate determination of a court or tribunal in any proceedings’, for the purposes of s 69(3). Accordingly, the expansive definition of the “record” in s 69(4) was not engaged.

[10]   Fourthly, even if the decision were reviewable on the grounds referred to above, there remained a large question as to whether, and if so why, an error on the part of the proper officer in referring the application to a review panel would necessarily invalidate the decision of the review panel. The evidence revealed that the review panel had already considered and upheld the challenge to the original certificate and replaced that certificate with its own certificate prior to the hearing before the primary judge. Again, if error had been identified, there would have been a strong case for refusing any form of relief on a discretionary basis.”

[Footnotes omitted and emphasis added.]

68. Dominice concerned a challenge to a decision by the relevant gateway officer to refer the matter for review to a panel. In the present case, the employer challenges the Registrar’s decisions (the original decision and the reconsideration decision) to refuse to refer the matter for review to a panel. In these circumstances, many of the observations made by Basten JA do not apply. However, it remains of significance that the section requires the Registrar to hold a particular belief.

69. Mr Hooke contended that the reasons should be read in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Liang) at [272]. Although the dicta in Liang are important, it is also important to recall what the plurality in Ballas said about Liang at [79]:

“… [G]iven that reasons and therefore erroneous reasons (if there be error) will generally manifest themselves in the language of the decision-maker, the injunction [in Liang at [272]] cannot be taken too far nor invoked so as to mask jurisdictional error that emerges in, or from, a decision-maker’s reasons.”

70. While there are considerable similarities between the statutory schemes under the Act and the Motor Accidents Compensation Act, there are important differences in the respective statutory wording. Importantly for present purposes, the gateway provision in the Act prohibits the Registrar from allowing the appeal to proceed unless he or she “is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out”; whereas s 63(3) of the Motor Accidents Compensation Act, the gateway provision, provides:

“The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.”

71. The words “reasonable cause to suspect” in s 63(3) constitute a lower bar than the satisfaction required in s 327(4): George v Rockett (1990) 170 CLR 104 at 115-116; [1990] HCA 26 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

Whether the requisite error has been shown

72. There are two decisions which are the subject of review: the Registrar’s original decision of 1 April 2020 and the Registrar’s reconsideration on 15 May 2020. The reconsideration is the operative decision as the Registrar’s decision confirmed the original decision: see the discussion in Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [79]-[85] (Sackville AJA, Leeming JA and Adamson J agreeing).

73. Mr McManamey contended that the AMS had made two demonstrable errors: first, that the AMS had made findings regarding causation which were contrary to the certificate of determination issued by the Commission on 27 November 2019, which included a determination that the claimant had suffered both primary and secondary psychological injuries as a result of the events of 31 October 2004. He argued that the AMS was bound by the Arbitrator’s determination in respect of injury since the question whether a claimant has suffered an injury is for the Commission to determine: Bindah at [111] (Emmett JA, Ward JA agreeing).

74. Mr McManamey also contended that the Arbitrator was entitled and obliged to determine whether the psychological injury was secondary or primary and relied on State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [22]-[23]. Mr McManamey argued that the AMS had erred in failing to appreciate that he was bound by the Arbitrator’s consent findings. He relied on the decision of the Court of Appeal in Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 (Scarce) in which Meagher JA (Powell JA agreeing) said at 575:

“… It is not in doubt that mental shock or trauma can constitute an ‘injury’ within the meaning of the statute, but only when it has a ‘physiological effect’. … In the present case, it would seem that most of the doctors who saw the worker described him as suffering from ‘an anxiety state’. This would seem to resemble an emotional impulse rather than a physiological effect. Certainly no doctor seems to have opined that a physiological effect did exist.”

75. On the basis of Scarce, Mr McManamey argued that the AMS was bound to accept that in respect of each injury found by the Arbitrator, there was a “psychological condition that has a physiological effect” which interfered with the claimant’s function. Thus, he argued that the AMS was not entitled to assess % WPI without first identifying or, if need be, constructing at least some physiological effect of the primary and secondary psychological injuries found by the Arbitrator.

76. Scarce was not referred to by the employer in its application to the Registrar for referral to the Appeal Panel or in its application for reconsideration. In these circumstances, I am not persuaded that it could form a proper basis for a finding of jurisdictional error on the part of the Registrar: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [67]-[68] (Black CJ, French and Selway JJ).

77. The relevance of Scarce to the present case is dubious in any event. The AMS was required to determine whether the primary psychological injury or the secondary psychological injury sustained as a consequence of what occurred on 31 October 2004 resulted in a % WPI and whether the primary psychological injury sustained as a result of the claimant’s nature and conditions of work between December 2004 and January 2006 resulted in a % WPI. Thus, it was no part of his role to determine whether an injury had occurred, that being an agreed finding. Further, it does not follow from the fact of an injury that there will be any % WPI, the latter being a matter for the AMS to assess in accordance with the referral.

78. In oral submissions, Mr McManamey relied on the statements referred to above to the effect that it is not for the Registrar to determine the appeal, but rather to assess whether any of the grounds raised were arguable. He submitted that the Registrar had exceeded jurisdiction by purporting to determine the appeal. He sought to denigrate the role of the Registrar by arguing that because the Registrar, under s 371(2) of the Act, could delegate any function to any member of staff (without specifying any particular qualifications), I should infer that the role of gatekeeper was not a particularly important one. I reject this submission. It does not follow from the absence of a requirement, say, that a delegate must be a legal practitioner, that the role is unimportant or that the function to be performed by the Registrar under s 327(4) – whether at least one of the grounds is arguable – requires little or no judgment. Indeed, the reasons for the Registrar’s decision of 1 April 2020 which are extracted above include a reference to what Basten JA said in Vegan at [8] that the Registrar is to determine whether the ground is, on its face, “valid and credible”, which itself involves an exercise in judgment.

79. Further, the Registrar, in the reconsideration decision, expressly referred to Ballas, on which Mr McManamey relied for his submission. When a decision-maker expresses a task in a legally unimpeachable way, it is difficult to accept that he did not do what he said he would do, unless there is a clear indication to the contrary. I consider it to be plain from the reconsideration decision that the delegate did not consider the grounds raised by the employer to be arguable. Accordingly, the Registrar was not satisfied that any of the grounds met the threshold in s 327(4) to be allowed through the gateway to be referred to the Appeal Panel. Mr McManamey urged that the decision was wrong and argued that the AMS was obliged as a matter of law to make separate findings on the primary and secondary psychological injuries resulting from the incident on 31 October 2004 and the psychological injury resulting from the nature and conditions of the claimant’s work.

80. As is plain from the delegate’s decision, the Registrar considered that it was not arguable that this approach was required in circumstances where the AMS considered that there was no % WPI from either the primary or secondary psychological injury resulting from what occurred on 31 October 2004 since there was no psychiatric disorder until later when the diagnosis of Major Depressive Disorder could be made as a result of the nature and conditions of the claimant’s employment. I reject as unarguable Mr McManamey’s submission that the AMS could not have determined that there was no permanent impairment arising from the primary psychological injury caused by the events of 31 October 2004 unless and until he separately determined whether there was any % WPI as a result of the secondary psychological injury caused by the events on that day. Since there was no diagnosable disorder, the result was 0% WPI. In these circumstances, any exercise of apportionment would be no more than an arid exercise. As Mr Hooke said orally, “you can divide zero as many times as you like, you still don’t get a deductible integer”.

75. The questions posed by the delegate were the correct ones. The reasons disclose no jurisdictional error. I am not persuaded that it was not open to the delegate, as a matter of jurisdiction or otherwise, not to be satisfied that none of the grounds relied on by the employer was arguable. I am not persuaded that the delegate committed a jurisdictional error.

Costs

82. The parties have agreed that, whatever the outcome, there should be no order as to costs.

Orders

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

1. Dismiss the amended summons.

2. By consent, make no order as to costs.

**********

Decision last updated: 15 December 2020