Secretary, Department of Education v Egan
[2022] NSWPICPD 45
•23 November 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Secretary, Department of Education v Egan [2022] NSWPICPD 45 |
APPELLANT: | Secretary, Department of Education |
RESPONDENT: | Janet Egan |
INSURER: | Allianz – TMF |
FILE NUMBER: | A1-W6051/21 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 23 November 2022 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal the interlocutory decisions of 16 February 2022 and 17 February 2022 pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. |
CATCHWORDS: | WORKERS COMPENSATION – section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – leave to appeal an interlocutory decision – section 65A of the Workers Compensation Act 1987 – secondary psychological injury |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Perry, counsel | |
| Turks Legal | |
| Respondent: | |
| Mr J Gaitanis, counsel | |
| Beilby Poulden Costello | |
DECISION UNDER APPEAL | |
MEMBER: | Ms J Snell |
DATE OF Member’s DECISION: | 17 February 2022 |
INTRODUCTION AND BACKGROUND
This is an appeal from a direction given by a Member of the Personal Injury Commission on 16 February 2022. The reasons for that direction were issued on 16February 2022 and supplemented by further reasons on 17February 2022.
The background facts are not controversial. The respondent was employed at Kirrawee Primary School as a Support Officer in a unit for children with special needs. On 20October 2015 she was injured when a heavy male student with mental difficulties ran into her. She fell backwards, landing heavily and awkwardly on gym equipment.
It is common ground that the respondent sustained physical injuries and, in addition, a primary psychological injury as defined in s 65A(5) of the Workers Compensation Act1987 (the 1987 Act). The appellant does not dispute that the respondent sustained a primary psychological injury.[1]
[1] Appellant’s submissions, [3].
On 30August 2021, the respondent made a claim for lump sum compensation in relation to both her physical and primary psychological injuries.
The appellant issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) declining liability for any lump sum compensation arising out of any injury. In the s 78 notice, the appellant asserted that the respondent had also sustained a secondary psychological injury as defined in s 65A(5) of the 1987 Act.
The parties agreed that the matter should be remitted to the President for referral to a Medical Assessor. The appellant wanted the Member to make the referral in the following terms:
“The matter is remitted to the President for referral to a Medical Assessor for assessment [of] the degree of [whole person impairment] (if any) resulting from the primary psychological injury suffered on 20 October 2015 bearing in mind that the Applicant [the respondent on appeal] continues to suffer the effects of a secondary psychological (pain) condition.” (My emphasis.)
The respondent did not agree to a referral in those terms.
The Member made a direction remitting the matter to the President for referral to a Medical Assessor without the inclusion of the underlined words and without having first determined whether the respondent had a secondary psychological injury. The appeal seeks leave to challenge the Member’s directions.
DIRECTION
On 16 February 2022, the Commission made the following directions:
“8. The [respondent’s] claim for permanent impairment compensation resulting from primary psychological injury on 20 October 2015, as agreed, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from that injury.
9. The materials to be referred to the Medical Assessor are the Application to Resolve a Dispute and the attached documents, the Reply and the attached documents, and this Direction.”
STATEMENT OF REASONS
The Member provided an initial Direction and statement of reasons on 16 February 2021 [sic, 2022] and a further direction and reasons on 17 February 2022.
The second document entitled “Further Direction” dated 17 February 2022 was delivered in response to the appellant’s solicitor’s email of 16 February 2022.
The email relevantly provided:
“I note at the teleconference that it was submitted by the [appellant] that the issue of whether the [respondent] suffered from a secondary psychological injury was a matter for the Member to determine at a conciliation/arbitration hearing prior to a referral of the primary psychological injury to the Medical Assessor, noting that the [respondent] disputed the existence of a secondary psychological injury. The Member determined that she would not list the matter for conciliation/arbitration to determine that issue and would proceed with the referral of the primary psychological injury.
However, the Member’s Direction does not appear to incorporate that issue nor her reasons for her determination.”
In the initial direction dated 16 February 2021 [sic, 2022] the Member said:
“With agreement by the [appellant] that the [respondent] sustained primary psychological injury on 20 October 2015 in the course of her employment with the [appellant], there is satisfaction of the requirements of s 4 and s 9A of the Workers Compensation Act 1987 and accordingly I am of the view the [respondent’s] claim for permanent impairment compensation resulting from primary psychological injury sustained on 20 October 2015 should be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from that injury. In conducting the assessment, consistent with s 65A(2) of the Workers Compensation Act 1987, it is incumbent on the Medical Assessor to exclude any consideration of impairment or symptoms resulting from any secondary psychological injury, and I do not accept the terms of referral should be as submitted by the [appellant] at paragraph 3 of Annexure A to the [appellant’s] Reply.”[2]
[2] Direction dated 16 February 2022, [7].
In the further direction dated 17 February 2022, the Member noted that the direction previously given did not include a brief statement setting out reasons as to why the Commission did not accept the appellant’s submission canvassed at the telephone conference on 11 February 2022, that the issue of whether the respondent suffered a secondary psychological injury was a matter for determination by a Member prior to referral of the respondent’s claim for permanent impairment resulting from primary psychological injury on 20 October 2015 to a Medical Assessor. To remedy this the Member provided further reasons in the subsequent direction.
The Member noted that:
“The [respondent] relevantly relies on a report dated 27 August 2021 prepared by Dr Rastogi in her capacity as an independent medical examiner. Dr Rastogi provided diagnosis in terms of major depressive disorder with anxiety and PTSD. Dr Rastogi assessed the [respondent] with 22% whole person impairment resulting from primary psychological injury. While Dr Rastogi disagreed with Dr Bisht’s assessment of whole person impairment (discussed below) she relevantly agreed that the [respondent’s] depression is perpetuated by pain and limitation resulting from her physical injuries.”[3]
[3] Further Direction dated 17 February 2022, [4].
The Member noted that the respondent’s claim was declined in accordance with s 78 of the 1998 Act. She said the appellant relied on a report from Dr Bisht dated 22 March 2021. Dr Bisht diagnosed major depressive disorder and PTSD and assessed the respondent with a 7% whole person impairment resulting from psychological injury. But he was of the opinion that the respondent’s psychological injury was a combination of primary psychological injury and secondary psychological injury resulting from her physical injuries, and apportioned 50% of the whole person impairment to primary psychological injury and 50% of the whole person impairment to secondary psychological injury. The result was a 4% whole person impairment resulting from the primary psychological injury. The Member quoted from the s 78 notice:
“We do not believe that you are eligible for permanent impairment lump sum compensation because your accepted primary psychological injury has not resulted in at least 15% permanent impairment as required by section 65A(3) of the Workers Compensation Act1987.”[4]
[4] Application to Resolve a Dispute, p 14.
The Member said:
“I accept that [the] question as to whether a psychological injury is secondary or primary in nature is one for the Commission to determine [State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346]. While it may be that during teleconference on 11 February 2022 submission was made on behalf of the [respondent] that she did not suffer secondary psychological injury, in circumstances where the [appellant] has accepted the [respondent] has sustained primary psychological injury on 20 October 2015 in the course of her employment with the [appellant] and the dispute the [respondent] has referred to the Commission is grounded in the [appellant’s] opinion the [respondent] has no entitlement to permanent impairment compensation resulting from that injury because the injury has not resulted in at least 15% permanent impairment as prescribed by s 65A(3) of the Workers Compensation Act 1987, I do not accept the [appellant’s] submission that the question as to whether the [respondent] suffers from a secondary psychological injury is a matter for determination by a Member prior to such referral being made to the Medical Assessor.”[5] (emphasis added.)
[5] Further Direction dated 17 February 2022, [7].
The Member reiterated her previous direction that the matter be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from the primary psychological injury sustained on 20 October 2015.
MONETARY THRESHOLD (SECTION 352(3) OF THE 1998 ACT)
The parties agree that the monetary threshold has been exceeded. The respondent’s claim was for $54,820 in respect of the primary psychological injury. The monetary threshold is met.
TIME (SECTION 352(4) OF THE 1998 ACT)
The parties agree and I am satisfied that the appeal has been commenced within 28 days of the direction(s) issued on 16 and 17 February 2022.
ON THE PAPERS
The parties agree that the appeal can be determined by me on the papers.
Section 52(3) of the Personal Injury Commission Act2020 (the 2020 Act), together with Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied that this is an appropriate matter to proceed “on the papers” without holding any conference or formal hearing.
NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
The jurisdiction provided in subsection 352(5) of the 1998 Act is:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Although I determine the present appeal having regard to s 352(3A), it is important to appreciate that the jurisdiction provided by s 352 is limited by the requirement that the appellant establish error of fact, law or discretion.
INTERLOCUTORY
It is common ground that the directions given by the Member were interlocutory in nature.
Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
GROUNDS OF THE APPEAL
The appellant raises three grounds of appeal:
“Ground 1: Error of law in failing to deal with [a] liability dispute prior to referring a question of whole person impairment to a Medical Assessor.
Ground 2: Error of law in failing to observe that s 65A(1) of the 1987 Act is a disentitling provision.
Ground 3: Error of fact in identifying as the ground of the dispute the issue of the s 65A(3) threshold.”
The appellant has filed primary submissions dated 16 March 2022 and submissions in reply to the respondent’s submissions dated 12 May 2022.
The respondent has filed submissions in opposition to the appeal dated 18 April 2022.
THE PARTIES’ SUBMISSIONS IN RESPECT OF THE APPLICATION FOR LEAVE: SECTION 352(3A)
Appellant’s submissions
The appellant’s submissions in support of the application for a grant of leave direct attention to s 321A(2) of the 1998 Act and Procedural Direction PIC6 – Medical Assessments, in support of the following submission:
“18. Given that s 321A(2) of the 1998 Act states that the Regulations ‘may’ provide that a medical dispute may not be referred if there is a liability issue, the fact that there are no such regulations does not support a conclusion that medical disputes can be referred despite a liability issue existing. Further, there are no regulations suggesting that a medical dispute should be referred despite a live liability issue. On that basis, a procedural direction insisting that the liability issue be determined before a medical assessment is to take place is given force by the legislation, and is consistent with the [2020] Act and the enabling legislation.
19. Contrary to the premise adopted by Member Snell, the appellant’s concession that there has been a primary psychological injury does not, in this case, mean that liability is not in issue.
20. The appellant has asserted that there has been a secondary psychological injury. It asserts that, pursuant to s 65A(3) of the 1987 Act, it has no liability for the effects of this injury. The respondent contends that there has not been such an injury.”
The appellant refers to Bunce v Sydney Traffic Control[6] and State ofNew South Wales (NSW Department of Education) v Kaur[7] in support of the proposition that s 65A is concerned with substantive rights rather than questions of the process of quantification of the entitlement to monetary compensation. It then submits that “[s]ubstantive rights should clearly be dealt with by the Commission, not by a medical assessor.”[8]
[6] [2022] NSWPIC 66.
[7] [2016] NSWSC 346 (Kaur), [23].
[8] Appellant’s submissions, [20].
The appellant cites the reasoning of Emmett JA in Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited[9] for the proposition that it is for the Commission to determine whether a worker has suffered injury within the meaning of s 4 of the 1987 Act.
[9] [2014] NSWCA 264, [111].
The appellant submits:
“In the absence of a determination of this issue by the Commission, a medical assessor would be obliged to proceed on the basis that no dispute existed on this issue. Alternatively, a medical assessor might regard himself or herself as required to make a determination as to the existence or otherwise of a secondary psychological injury, a determination which would clearly be outside the assessor’s jurisdiction.”[10]
[10] Appellant’s submissions, [25].
The appellant submits that it is “necessary for the proper and effective determination of the dispute that the Commission undertake the primary task of determining whether there has or has not been a secondary psychological injury. That is, whether the appellant has discharged its onus.”[11]
[11] Appellant’s submissions, [26].
Respondent’s submissions
The respondent’s submission on the leave application is succinctly put as follows:
“The appellant’s assessment of an entitlement to appeal in these circumstances is misconceived for reasons that will follow and leave should be refused. Moreover, the Medical Assessor has not made any assessment as the referral has not occurred pending this appeal. No prejudice has flowed to the appellant yet. If the Medical Assessor does erroneously include in the assessment any regard, numerical or otherwise for secondary psychological injury, then the appellant has relief by way of an appeal to the Medical Panel.”[12]
[12] Respondent’s submissions, [1.6.1].
CONSIDERATION OF THE APPLICATION FOR LEAVE
For the reasons that follow I decline to grant leave pursuant to s 352(3A) of the 1998 Act.
Firstly, the direction, in my view, in its terms limits the enquiry by the Medical Assessor to the assessment of permanent impairment “resulting from [the] primary psychological injury on 20 October 2015 as agreed”. It is only if the words proposed in the draft direction proffered by the appellant (“bearing in mind that the Applicant [the respondent on appeal] continues to suffer the effects of a secondary psychological (pain) condition”) are accepted that the so-called secondary psychological injury issue arises. Both Drs Bisht and Rastogi were able to delineate the primary psychological injury as part of their medical expertise. The authorised Medical Assessor doubtless will be able to do likewise.
Secondly, the Medical Assessment Certificate is subject to appeal pursuant to s 327 of the 1998 Act. The parties retain their right to appeal under s 352 of the 1998 Act in the event that the Certificate of Determination that results from the present process is affected by error of fact, law or discretion.
Any concern that there may be as to the conclusiveness of the Medical Assessment Certificate is resolved by a consideration of the effect of s 326 of the 1998 Act. The section limits the matters to which the Medical Assessment Certificate is conclusively presumed to be correct. Those matters do not extend to a determination of whether a psychological injury is a primary or secondary psychological injury. To the extent the Medical Assessment Certificate purported to determine whether the injury was a primary or secondary psychological injury, the conclusion would not be conclusive but merely evidence in any future proceedings: s 326(2).
Thirdly, the respondent is correct that a Medical Assessor has not made any assessment. The Member merely determined that the matter should be remitted to the President for referral to a Medical Assessor. That is not a final determination of the parties’ rights. The present Direction(s) are procedural and do not foreclose either party’s future rights.
Fourthly, the Member was correct when she observed that there was no dispute that the respondent suffered a primary psychological injury. This is conceded by the appellant in its submissions at paragraphs [3] and [13]. In Kaur, referred to by the appellant, Campbell J noted at [22] the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of the medical dispute as defined by s 319 of the 1998 Act. For this reason, that question cannot be determined by a Medical Assessor. However, his Honour went on to say in the context of discussing Wingfoot Australia Partners Pty Limited v Kocak:[13]
“Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.”
Here the question to be presented to the Medical Assessor is the assessment of the whole person impairment “resulting from primary psychological injury on 20 October 2015”. No liability issue is delineated by the direction.
[13] [2013] HCA 43; 252 CLR 480, [26].
Fifthly, presumably a direction under s 321A(2) is unnecessary having regard to Procedural Direction PIC6 – Medical Assessments because the latter precludes assessment of the degree of permanent impairment unless the liability dispute is resolved “either by agreement … or determined by a member of the Commission”. It is patent here that the parties have determined the relevant liability dispute by their agreement that there is a primary psychological injury.
Sixthly, there is no authority in the 1987 Act or otherwise for a Medical Assessor to assess secondary psychological injury. Section 65A(2) says that no regard should be had to impairment or symptoms resulting from a secondary psychological injury. There is no reason to assume that the Medical Assessor would fail to observe the statutory direction contained in s 65A(2) and there is certainly no warrant to prejudge that matter by adding the superfluous words proposed by the appellant to the Member.
Seventhly, the appellant’s submission at [25] that the Medical Assessor is obliged to proceed on the basis that no dispute existed as to the primary psychological injury is correct. There is in fact no dispute about the primary psychological injury. There is no dispute furthermore that it would be outside the assessor’s function to assess secondary psychological injury. What s 65A(2) requires is that any secondary psychological injury or symptoms therefrom be disregarded.
Eighthly, the appellant’s submission at [43] in support of Ground 2 of the appeal is, with respect, incorrect. The Member has not referred for determination by the Medical Assessor a question being the existence of secondary psychological injury. That does not accord with the terms and text of the directions.
Ninthly, the proposition advanced at paragraph [47] in support of Ground 3 that there is a dispute between the parties as to the existence or otherwise of a secondary psychological injury may or may not be correct, but that is not what was referred for assessment pursuant to the direction. This is the point correctly made by the respondent in her submissions at [21] when she submits that the “liability issue was resolved when the appellant accepted liability for a compensable injury - that is, a primary psychological injury. The provisions of s 65A disentitling an assessment for secondary psychological injury do not give rise to a further liability dispute.” As the respondent submits at [25], the remaining dispute was a medical dispute, namely the assessment of the degree of permanent impairment.
Tenthly, at the end of the day a direction for a referral of the matter to ultimately be assessed by a Medical Assessor is a procedural direction which does not determine finally either party’s rights.
The grant of leave under s 352(3A) requires that I be satisfied that the granting of leave is “necessary or desirable for the proper and effective determination of the dispute”. If one assumes that the Medical Assessor assesses the whole person impairment resulting from the primary psychological injury sustained on 20 October 2015, then the medical dispute as to the whole person impairment will have been resolved.
Accordingly a grant of leave is not “necessary” for the proper and effective determination of the parties’ rights. Furthermore, it is not “desirable” because to do so would complicate the proceedings by an additional hearing before the Commission prefatory to a determination by a Medical Assessor of the whole person impairment resulting from the admitted primary psychological injury.
I have for the purpose of this decision made reference to the grounds of appeal and to certain submissions by the parties. These references are for the limited purpose of delineating the nature of the dispute and the outcome of a grant of leave to appeal the directions if leave is granted. This decision is confined to the application for leave. It does not make any determination of the substantive grounds of the appeal.
CONCLUSION
I decline to grant leave to appeal an interlocutory decision.
DECISION
Leave to appeal the interlocutory decisions of 16 February 2022 and 17 February 2022 pursuant to s 352(3A) of the 1998 Act is refused.
Geoffrey Parker SC
Acting Deputy President
23 November 2022
3
4
0