State of New South Wales (Central Coast Local Health District) v Page

[2023] NSWSC 935

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales (Central Coast Local Health District) v Page [2023] NSWSC 935

Hearing dates:

02 August 2023

Date of orders:

10 August 2023

Decision date:

10 August 2023

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Leave to commence proceedings out of time to argue grounds 1 to 4(a) of the summons is refused.

(2) Summons is otherwise dismissed.

(3) Each party to bear their own costs.

Catchwords:

ADMINISTRATIVE LAW – judicial review – workers compensation – where plaintiff seeks extension of time to commence proceedings under UCPR 59.10 only after decisions of approved medical specialist and Second Appeal Panel are not favourable to it – unexplained delay – extension of time refused – whether error of law by the Second Appeal Panel in its approach to pre-existing condition and its approach to evaluation of impairment – no error by Second Appeal Panel – summons dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Ryder v Sundance Bakehouse [2015] NSWSC 526

Skates v Hills Industries Ltd [2020] NSWSC 837

Skates v Hills Industries Ltd [2021] NSWCA 142

Category:

Principal judgment

Parties:

State of NSW (Central Coast Local Health District) (Plaintiff)
Colleen Page (First Defendant)
President, Personal Injury Commission (Second Defendant)
Member John Wynyard, Tommasino Mastroianni and Roger Pillemer as an Appeal Panel (Third Defendant)
Dr Mark Burns (Fourth Defendant)
R J Perignon, Gregory McGroder and John Brian Stephenson as an Appeal Panel (Fifth Defendant)

Representation:

Counsel:
S Blount (Plaintiff)
D Hooke SC / B McManamey (First Defendant)
Submitting appearance (Third, Fourth and Fifth Defendants)

Solicitors:
Gair Legal (Plaintiff)
Carroll & O’Dea Lawyers (First Defendant)
NSW Crown Solicitor’s Office (Third, Fourth and Fifth Defendants)

File Number(s):

2023/00060496

Publication restriction:

Nil

JUDGMENT

1. By summons filed on 22 February 2023 the plaintiff seeks orders in the nature of certiorari quashing the decisions of the third, fourth and fifth defendants and in the alternative, declarations that those decisions are void and of no effect. These decisions were made on 10 May 2022, 7 September 2022 and 1 December 2022, respectively.

2. Because the summons was filed more than three months after the date of the decisions of the third and fourth defendants, the plaintiff requires an extension of time pursuant to r 59.10 of the Uniform Civil Procedure Rules (NSW) (“UCPR”). For the reasons that follow, I decline to grant the plaintiff an extension of time.

3. The proceedings were commenced in time in respect of the decision of the fifth defendant (the Second Appeal Panel) and so I will examine and evaluate the alleged errors in that decision.

4. The Court’s jurisdiction arises under the Supreme Court Act 1970 (NSW) and is confined to jurisdictional errors and errors of law on the face of the record.

5. The third and fifth defendants have each filed submitting appearances, as has the fourth defendant, medical assessor, Dr Burns. The only active contradictor is the first defendant, the worker, Colleen Page (“Ms Page”).

6. Before turning to the grounds relied on by the plaintiff, I will outline the background facts.

Background Facts

7. Ms Page was employed as a pharmacy porter by the Central Coast Local Health District between 2004 and October 2018. It is common ground that she had pre-existing osteoarthritis in both thumbs, but this was previously asymptomatic and not investigated, diagnosed nor treated. She is now 72 years old.

8. The history of onset of symptoms comprised noticing pain at the base of her right and left thumbs on 8 October 2018. This was initially treated by her GP with physiotherapy, subsequent referral to an orthopaedic surgeon and then surgery in 2019 and 2020.

9. On 5 January 2021, Dr Hope, an orthopaedic surgeon retained by the solicitors acting for Ms Page, concluded that she had suffered a permanent aggravation of pre-existing osteoarthritis in each thumb comprising a total of 14% whole person impairment (WPI). Dr Hope made no reduction on the basis of “previous injury, pre-existing condition or abnormality”, explaining that pre-existing pathology was present, but was not symptomatic, not investigated, not diagnosed and not treated and therefore there was no deduction.

10. On 12 May 2021, Dr Silva, an orthopaedic surgeon retained by the solicitors for the plaintiff, found 9% WPI for each thumb but concluded that “half of the WPI is deducted for pre-existing osteoarthritis at the carpo-metacarpal joint of both thumbs”.

11. On 13 September 2021, the worker filed an Application to Resolve a Dispute in the Personal Injury Commission claiming lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW) with 8 October 2018 deemed date of injury. The worker claimed that she:

“… sustained injury to both of her hands and wrists as a result of increased manual handling required by her role. This led to an exacerbation of bilateral wrist osteoarthritis which inhibits her use and movement of both hands.”

12. On 15 September 2021, the insurer filed a Reply to the application.

(i) The First AMA Report

13. On 17 November 2021, the Commission referred the medical dispute to Dr Wong, Medical Assessor, omitting to state the date of injury was a deemed date.

14. On 19 December 2021 Dr Wong assessed 10% WPI for each thumb but deducted 50% for pre-existing injury for a total of 10% WPI. On the same day, the worker filed an application to Appeal the decision of Dr Wong.

15. On 7 March 2022, the insurer filed a Notice of Opposition.

(ii) The First Appeal Panel decision

16. On 10 May 2022 the First Appeal Panel concluded that there was demonstrable error in the medical assessment certificate of Dr Wong. The First Appeal Panel noted the worker’s submissions that the assessor had mischaracterised the nature of the injury and issue, and that the respondent’s submissions that this “did not matter” because a detailed history had been obtained.

17. The Panel then discussed that the facts of the case “fell squarely within recent authority” relating to the position of referrals within the process of medical dispute resolution, noting the date of injury in the referral did not reflect the intention of the parties in referring the “medical dispute” and noting the relevant and significant differences in the application of s 323 of the Workplace Injury Management and Workers Compensation Act1998 (NSW) (“the WIM Act”) and the two categories of injury defined by s 4 of the 1987 Act, and differences in related procedural provisions and the different assessment criteria.

18. The Panel reasoned that it appeared to it that the decision of Dr Wong should be considered to be a nullity because it does not reflect the intention of the parties as to the referral of the medical dispute and the matter will have to be reassessed as a deemed injury.

19. The Panel referred to the approach and language of Adamson J (as her Honour then was) in Skates v Hills Industries Ltd [2020] NSWSC 837 (Skates) where her Honour observed that the Appeal Panel in that case was correct to determine that the medical assessor had gone beyond the terms of the referral, but that “… the Appeal Panel should have reverted to the Registrar to obtain a referral which reflected the parties’ agreement as to the correction required”.

20. The Panel explained in their reasons that it was their opinion that they needed to make a finding or articulate a conclusion that the medical assessment by Dr Wong was “null and void” to facilitate the obvious need to “revert” the matter to the President because the terms of the referral the parties had identified had not been complied with by Dr Wong.

21. The Panel concluded in the final paragraph of their reasons that they had “determined that the medical assessor certificate issued on 19 December 2021 is a nullity, and the matter is reverted to the Commission to be reassessed”.

(iii) Steps taken after the “reverting” to the Commission

22. No objection was articulated by either party to the course adopted by the First Appeal Panel (until the summons was filed by the plaintiff in February 2023, nine months later).

23. On 26 July 2022, the Commission emailed both parties asking whether there was any objection by the worker to a referral to Dr Burns, Medical Assessor. The Commission then referred the matter to Dr Burns, noting that the date of injury was expressed to be a deemed date of injury.

24. On 1 August 2022, the Commission emailed the parties with the details of the examination of the worker and asked the worker to confirm that she agreed with COVID-19 requirements relevant to the proposed assessment.

(iv) Dr Burns’ assessment and appeal

25. On 7 September 2022 Dr Burns assessed the worker as suffering a total 21% WPI for the left and right upper extremities.

26. On 17 October 2022, the plaintiff appealed the decision of Dr Burns on the basis of incorrect criteria and/or demonstrable error. In support of its appeal four and a half pages of written submissions, signed by Ms Gair, solicitor and dated 17 October 2022 were filed. Nothing at all was said in those submissions indicating any issue with the approach that had been taken by the First Appeal Panel. To the contrary, the submissions implied an acceptance that the process adopted by it was appropriate:

“The MAP ultimately issued a determination on 10 May 2022 concluding that the assessment from Dr Wong was a nullity and the matter was reverted to the Commission to be reassessed. The respondent worker has therefore recently been assessed by MA, Dr Mark Burns, who has provided a MAC dated 19 September 2022.”

27. On 24 October 2022, the worker filed a Notice of Opposition and provided written submissions.

28. On 18 November 2022 at the request of the Second Appeal Panel, Ms Gair made brief supplementary submissions, and on 25 November 2022 at the request of the Second Appeal Panel the solicitor for the worker made brief supplementary submissions.

(v) Decision of the Second Appeal Panel

29. On 1 December 2022 the Second Appeal Panel confirmed the assessment of 21% WPI made by Dr Burns (Second Decision). The Panel took a different approach to Dr Burns on the issue of deduction under s 323 of the WIM Act, as is their right, and concluded that Dr Burns ought to have considered whether arthritis existed prior to the deemed date but continued to carry out their own assessment of impairment and analysis. They concluded, relevantly:

“40.   Having regard to the advanced nature of the arthritis demonstrated on scans in November 2018 and January 2019, the Panel is comfortably satisfied that there was arthritis in both thumbs prior to injury on 8 October 2018. It remains for the Panel to consider what, if any, deduction ought be made to take account of that pre-existing condition.

41.   A deduction is only available in respect of such a condition if it currently contributes to the assessed impairment. To make that finding, the assessed impairment must be greater by reason of the pre-existing condition than it would otherwise have been. As Campbell J put in Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45], ‘the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great’.

42.   In this case, arthritic conditions of both thumbs were treated by trapeziectomy and suspension plasty at the hands of Dr Marchalleck on 28 August 2018 (left) and 25 July 2020 (right). The operation reports and reports of subsequent consultations are before us. In both cases, the trapezium bone was removed, together with one third of the proximal trapezoid. This was done in order to remove all arthritic tissue. Suspension plasty was performed by suspending the metacarpal joint from the index finger, to compensate for the loss of the trapezium.

43.   With removal of the arthritic tissue, arthritis ceased to exist in the thumbs. Dr Burns’ examination disclosed no evidence of persisting arthritis. There is no basis for any finding that it exists, or that it continues to contribute to impairment.

44.   Dr Silva considered that pre-existing arthritis continued to contribute to impairment, because there was some impairment due to surgery, which itself was made necessary by the pre-existing arthritis. He omitted to consider the test in Ryder.

45.   In our view, it is not possible to find that the impairment is greater by reason of the pre-existing arthritis than it otherwise would have been, because there is no evidence that the surgery would have been necessary by the time of the assessment, but for the aggravation and exacerbation of arthritis on 8 October 2018, which rendered the underlying condition symptomatic. To put it in the terms used in Ryder, the Panel is not satisfied that, ‘but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great’. As the test in Ryder is not satisfied, no deduction is available, and a further examination is unnecessary.”

30. In respect of the process that had been followed by the First Appeal Panel, the Second Appeal Panel made these observations at [6]:

“On 10 May 2022, a Medical Appeal Panel (constituted differently from this Panel) noted the submissions of the appellant, but upheld her appeal on a different basis. The Panel found that it was the intention of the parties that the assessment be made on the basis of a deemed date of injury, that the referral did not reflect this, and that accordingly the assessment of Medical Assessor Wong, made in accordance with the strict terms of the referral, was a nullity. In accordance with the suggestion of Adamson J in Skates v Hills Industries Limited [2020] NSWSC 837 at [73], the Panel reverted to the President in order to obtain a referral which reflected the parties’ agreement as to the date of injury, and which therefore reflected the dispute which the Commission had power to determine.”

31. I should note that both Dr Burns and the Second Appeal Panel refer to 11% impairment for each upper extremity which would add up to 22% WPI, given there was no deduction for a pre-existing condition. The reference to 21% in both certificates appears to be a slip, but no submission was made about this and so I will say nothing more about it.

The relevant legislative framework

32. The time for commencing proceedings and the provisions for extending time are set out in r 59.10 of the UCPR:

59.10   Time for commencing proceedings

(1)  Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2)  The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3)  In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—

(a)  any particular interest of the plaintiff in challenging the decision,

(b)  possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)  the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)  any relevant public interest.

(4)  This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5)  This rule does not apply to any proceedings in which the setting aside of a decision is not required.

33. The proceedings on the summons in this Court are governed by s 69 of the Supreme Court Act:

69 Proceedings in lieu of writs

(1) Where formerly—

(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act—

(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d) shall not issue any such writ, and

(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

(2) ….

(3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings—

(a) jurisdiction to quash the ultimate determination of the court or tribunal, and

(b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.

34. Section 4 of the Workers Compensation Act relevantly defines injury as meaning “a personal injury arising out of or in the course of employment”.

35. Pursuant to s 66(1) of the Workers Compensation Act, a claimant can only be awarded compensation for permanent impairment if the assessed WPI is at least 10%. Section 66(1A) provides that only one claim can be made under the Act for permanent impairment compensation in respect of permanent impairment that results from an injury. A claimant cannot commence court proceedings for the recovery of work injury damages unless the degree of WPI has been assessed by an accredited medical assessor to be at least 15%: ss 313 and 314 of the WIM Act.

36. Part 7 of Chapter 7 of the WIM Act sets out the provisions for Medical Assessment. Section 319 defines “medical dispute” in terms of evaluation of impairment:

319 Definitions

In this Act—

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—

(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker’s fitness for employment,

(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,

(e) the nature and extent of loss of hearing suffered by a worker,

(f) whether impairment is permanent,

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

37. Whilst all the provisions in this Part of the WIM Act are broadly relevant to the issues in dispute, the key provisions include:

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.

(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.

(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.

38. Section 323 and its application to Ms Page’s impairment was central to the referred “medical dispute”:

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.

39. Section 328 provides for the machinery and statutorily created role and function of a Medical Appeal Panel:

328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows—

(a) 2 medical assessors,

(b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.

(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

(2A) To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members.

(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.

(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.

40. The plaintiff’s lynchpin argument was that the First Appeal Panel could only confirm or revoke the certificate of Dr Wong, and in their purporting to “declare null and void” Dr Wong’s certificate, they were acting outside of the limited powers conferred.

The evidence

41. The plaintiff relied on two affidavits of Jennifer Gair, solicitor, affirmed 26 April 2023 and 22 May 2023. Oral evidence was led from Ms Gair in an attempt to fill gaps in the affidavit material left by the rejection of obviously inadmissible material that was effectively surmise or guesses by Ms Gair as to what the solicitor with conduct of the matter at the relevant time, (Mr Quillen), had decided, or done.

42. The oral evidence did not assist in filling these gaps but did reveal the following key facts:

1. Mr Quillen was a very experienced practitioner with over 30 years’ experience in workers compensation matters.

2. Ms Gair did not supervise Mr Quillen.

3. Mr Quillen had left the firm.

4. There was no evidence of any attempt to contact Mr Quillen or to request an affidavit from him.

5. Ms Gair has had over 30 years’ experience in workers’ compensation practice.

6. Ms Gair offered no explanation for the delay.

43. I was informed by counsel, on instructions from Ms Gair, that she had not been able to find any file notes of Mr Quillen covering the relevant time period and decision-making when he had conduct of the matter, and that to Ms Gair’s knowledge, Mr Quillen was currently living and working for a competitor firm in NSW.

44. The failure to call any evidence from Mr Quillen meant that I was not assisted with any explanation for the delay from 22 May 2022 (the First Appeal Panel Decision date). Nor did Ms Gair’s evidence explain the delay in the filing of the summons between October 2022, when she clearly had conduct of the matter (as the signatory of written submissions to the Second Appeal Panel) and February 2023, when the summons was filed.

45. Ms Page relied upon an affidavit of her solicitor, Mr Dougall, affirmed 17 May 2023 that annexed other relevant correspondence and certificates from the proceedings before the Commission.

The alleged errors

46. The summons complained that the First Appeal Panel made a jurisdictional error and thus the decisions that followed by the fourth and fifth defendants were “without jurisdiction”:

“Grounds

(1)   The third defendant made a jurisdictional error by failing to exercise its jurisdiction.

Particulars

The third defendant had the jurisdiction to confirm a certificate of assessment given in connection with the medical assessment appealed against, or revoke that certificate and issue a new certificate as to the matters concerned. The third defendant purported to finally dispose of the appeal without either confirming the certificate appealed against, or revoking the certificate and issuing its own certificate.

(2)   The third defendant made a jurisdictional error by acting in excess of its jurisdiction.

Particulars

The third defendant had the jurisdiction to confirm a certificate of assessment given in connection with the medical assessment appealed against, or revoke that certificate and issue a new certificate as to the matters concerned. The third defendant purported to finally dispose of the appeal to it, without either confirming the certificate appealed against, or revoking the certificate and issuing its own certificate, by declaring the certificate of assessment appealed against to be null and void or alternatively, a nullity.

(3)   The fourth defendant’s decision was made without jurisdiction.

Particulars

(a)   By reason of the third defendant failing to exercise its jurisdiction and/or acting in excess of jurisdiction the fourth defendant’s decision was made without statutory authority and is null and void.

(b)   By reason of the third defendant failing to exercise its jurisdiction and/or acting in excess of jurisdiction, the decision of Dr Wong of 19 December 2021 remains on foot and is conclusively presumed to be correct as to the degree of permanent impairment of the first defendant, and the fourth defendant has no statutory authority to make a decision additional to the decision of Dr Wong and the fourth defendant’s decision is null and void.

(4)   The fifth defendant’s decision was made without jurisdiction.

Particulars

(a)   By reason of the fourth defendant having made a decision that is null and void there was no decision capable of enlivening the fifth defendant’s jurisdiction on appeal.”

47. An alternative ground was posed regarding the Second Appeal Panel’s application of s 323 of the WIM Act:

“4(b)   In the alternative, if there was a decision before the fifth defendant capable of enlivening its jurisdiction on appeal the fifth defendant made two jurisdictional errors:

(i)   The fifth defendant made an error of law in failing to find that because the injury complained of was an aggravation and exacerbation that occurred on the deemed date, the underlying arthritis gave rise to an impairment greater than what the impairment from the aggravation and exacerbation would otherwise have been.

(ii) The fifth defendant failed to consider a clearly articulated case made by the plaintiff that asymptomatic pre-existing conditions may give rise to a deduction under s 323 of the Workplace Injury Management Act.”

48. The plaintiff also asserted as ground 5 that all the appeal grounds comprised errors of law for the purposes of s 69 of the Supreme Court Act.

Extension of time affecting Grounds 1, 2, 3, and 4(a)

49. In his written submissions Mr Blount asserted that the plaintiff had given an explanation for the delay and that was “the obligations of insurers and their legal representatives to act reasonably towards workers who allege work injuries”. I frankly do not understand that submission. It also is contrary to what is now occurring, which is that having failed to raise an issue about the First Appeal Panel’s approach in May 2022, now that the outcome from the Second Appeal Panel confirming Dr Burns’ assessment of 21% WPI is more favourable to the worker, the insurer (the plaintiff) is seeking to undo the whole process.

50. The written submissions conceded “some prejudice to the first defendant because of her having to undergo a second assessment by Dr Burns” but that she “will not be prejudiced by reason of not being afforded a fair hearing on the summons”. I do not understand that submission either. There is clear prejudice to the first defendant in the proposed undoing of the assessment that was made by Dr Burns, affirmed by the Second Appeal Panel of a (21)% WPI.

51. In addition to that, having properly submitted to the processes under the legislation, there will be further delay caused noting that Dr Burns’ decision was 14½ months ago, and the Second Appeal Panel decision, eight months ago.

52. Mr Blount argued that the error by the First Appeal Panel was so egregious that it is in the public interest (r 59(3)(d)) to make sure that it is corrected and that this is a strong enough ground on its own to extend time. The “egregiousness” was said to be that the First Appeal Panel purported to make a “Declaration”, the inherent jurisdiction for which resides in a superior court of record only and in legislation, such as s 75 of the Supreme Court Act. In making a “Declaration”, and in failing to revoke the certificate and issue a new certificate, or confirm the certificate for Dr Wong, the panel made a decision without power and so there was jurisdictional error and such errors must be corrected, and time must be extended to allow that correction to occur.

53. In response, Mr Hooke SC argued that first, there was no explanation at all given by the plaintiff for the delay in filing the summons. Second, the asserted error was not egregious at all, and was not an error but simply infelicitous language adopted by the First Appeal Panel in trying to deal with the problem with which they were presented. If it was truly the case that a party thought that there had been a failure to exercise jurisdiction properly, it was open to a party to go back to the decision-maker at the time to raise the issue and ask that the failure be cured. Indeed, that is the preferable way for it to be done, but no such attempt was made.

54. Mr Hooke submitted that the First Appeal Panel was acting consistently with the approach taken in recent relevant decisions. The First Appeal Panel’s reference to “recent authority”, was clearly a reference to Adamson J’s decision in Skates (and the majority in the Court of Appeal’s treatment of the same issue in Skates v Hills Industries Ltd [2021] NSWCA 142) which dealt with circumstances where a referral had been made to a medical assessor which was incomplete and omitted reference to a body part. The assessor was found to be in error in pressing on and assuming the medical dispute included the body part not mentioned in the referral and the assessor’s certificate was set aside by the Appeal Panel however Adamson J observed at [73] that the Appeal Panel should have taken action to secure a correct referral given the parameters of the dispute had been made clear:

“While the Appeal Panel was correct to determine that the AMS had gone beyond the terms of the referral in considering the shoulder, elbow and other fingers and thumb, the Appeal Panel itself was in error in not giving effect to the Employer’s concession that the left wrist ought also to have been referred. When it became aware of the parties’ concession, the Appeal Panel should have reverted to the Registrar to obtain a referral which reflected the parties’ agreement as to the correction required. It was not entitled to ignore the Employer’s concession that the wrist should have been included.” (Emphasis added).

55. Mr Hooke suggested that Adamson J’s judgment was where the word “reversion” came from and that the First Appeal Panel here was trying to comply with the approach suggested by Adamson J. Dr Wong, the first assessor, was not wrong in his assessment but the referral was wrong and so the language used in the legislation, “to confirm” or “to revoke the certificate and substitute a new certificate” did not seem apposite, (nor available), in the circumstances.

56. Mr Hooke submitted that Adamson J’s approach was effectively endorsed on appeal by Basten JA at [30], [35] and [36] and Leeming JA at [48] to [50]. (I note that McCallum JA (as the Chief Justice of the A.C.T. then was) dissented on a different basis).

57. Mr Hooke also noted that Dr Wong’s initial assessment was based on an incorrectly articulated referral, so if the relief sought in the summons is granted, the worker will have to start the whole assessment process again, causing further delay and prejudice.

Decision

58. I decline to extend time for commencing the proceedings. First, there is simply no explanation offered for the delay between May 2022 and February 2023. The history of the proceedings suggests that, contrary to what was submitted by Mr Blount, the “egregious error” by the First Appeal Panel was not viewed as such, but was, in context, part of an acceptance by the parties that the matter had to “start again” with the properly described medical dispute being referred to a new assessor. It was only after that occurred, and the plaintiff did not like the outcome of the Second Appeal Panel’s decision, that complaint was made about the First Appeal Panel’s process seven months prior.

59. I do not accept that the plaintiff has a “particular interest” in challenging the decision: (r 59(3)(a)). The First Appeal Panel was attempting a pragmatic solution to an inadequately referred medical dispute. To suggest that there is some educative role in providing the relief sought in the summons is to vastly overstate the alleged mischief that occurred here. A practical solution of “reversion” to the Commission so that the properly described medical dispute could be referred was obviously what was sought to be, and was, achieved. The infelicitous use of the language of “declaring” - (small “d”) - the decision made by Dr Wong “null and void” (but not “wrong” based on the referral that he had dealt with), was nothing more than that: infelicitous language. The First Appeal Panel were not in a position to “revoke that certificate and issue a new certificate as to the matters concerned” as provided by s 323(5) of the 1998 Act, because the First Appeal Panel had recognised that the referral terms were incorrect.

60. There is significant prejudice to the worker caused by the delay and in having to start all over again if the relief sought is granted: (r 59(3)(b)). She is 72 years old and has been incapacitated from her work as a pharmacy assistant for almost 5 years. She is entitled to the fairly achieved outcome of the processes in which she has properly participated.

61. Addressing r 59(3)(d), to my mind, there is strong public interest in having the decisions for disputes that have been validly pursued and determined left in place, rather than to set aside a decision by a process of raising technical errors, late, when a party has clearly acquiesced in the decision-making process it seeks to complain about only once the overall outcome is not in its favour. This is a more powerful public interest than the need to “correct” a pragmatic approach taken by an Appeal Panel in furtherance of its understanding of the requirements of Skates to seek assistance from the Commission to secure the correct referral.

62. The evidence revealed that the plaintiff was represented by two very senior practitioners who were well-versed in workers compensation matters and worked at a specialist firm. I do not accept that somehow the content and repercussions of the alleged “egregious error” by the First Appeal Panel was missed. In any event, no such explanation was suggested. Nor in my view was the approach of the First Appeal Panel an error in the circumstances, although the articulation of the basis of the need for the “reversion” could have perhaps been better expressed.

63. An extension of time is refused, and the application made orally for an alternative declaration of “error” on the part of the First Appeal Panel, is declined.

Consideration of Ground 4(b) – Second Appeal Panel – no error

64. Mr Blount argued that [45] of the Second Appeal Panel’s Reasons demonstrated that it had misapplied the “but for” test set out by Campbell J in Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) at [45] where his Honour said:

“[45] What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”

65. Mr Blount argued that the injury deemed to have occurred on 8 October 2018 is the aggravation and exacerbation complained of by the worker. The arthritis is the pre-existing condition. The impairment from the aggravation and exacerbation requiring surgery was due to this pre-existing condition. The Second Appeal Panel then found that “without the aggravation and exacerbation, the pre-existing condition would not of itself have required surgery”. Mr Blount argued that the Panel had inferred that because the pre-existing condition itself did not require surgery, it could not be said that the degree of impairment was greater by reason of the existence of the pre-existing condition.

66. I interpolate that this is not how the Second Appeal Panel reasoned at all and the submission mis-states the Panel’s approach. It is evident in [45] of the Reasons that there was no evidence in their expert view, that would form a basis for a conclusion to the contrary.

65. Mr Blount submitted that the only approach the Second Appeal Panel could take, applying the ‘but for’ test correctly, was that without the pre-existing condition of arthritis, the degree of impairment resulting from the injury, which was the aggravation and exacerbation, would not have been as great. He submitted that the error made by the Second Appeal Panel was that it applied the ‘but for’ test to the injury itself - the aggravation and exacerbation - not the pre-existing condition”.

66. Mr Hooke submitted that Mr Blount’s approach reveals a major flaw. Rather than focusing on assessment of impairment, which was the task at hand for the Second Appeal Panel, Mr Blount’s submission confuses and conflates the distinct concepts of “injury”, “pre-existing condition” and “impairment”.

67. What is being assessed is the degree of permanent impairment at the time of assessment and what if any, deduction should be made under s 323 of the WIM Act.

68. What the Second Appeal Panel did was to evaluate precisely the question that the plaintiff posed for its consideration: to what degree, if any, does the pre-existing condition (which they found) contribute to the ultimate level of permanent impairment? The answer given, for the reasons set out by the Panel was, no it does not. This was an issue that was squarely within the field of medical judgement that tribunals are required to bring to bear on these decisions.

69. I agree with the submissions made by Mr Hooke on this issue. The impairment was assessed by range of movement, not what was shown on an x-ray or covered by a complaint of pain. The Panel explained their reasons for concluding as they did. There was no error.

70. Mr Blount separately complained that the Second Appeal Panel had not adequately dealt with the insurer’s submissions referring to various authorities that held that asymptomatic pre-existing conditions may give rise to a deduction under s 323.

71. Mr Hooke acknowledged that it is clear that an asymptomatic pre-existing condition may contribute to the ultimate degree of permanent impairment, but whether it does or not was a matter for the Second Appeal Panel to evaluate and they concluded, for the reasons set out at [42] and the surrounding paragraphs that in this case, it did not.

72. I accept Mr Hooke’s submission that it is clear from their reasons that the Second Appeal Panel were well aware that an asymptomatic pre-existing condition may give rise to a deduction under s 323 of the WIM Act, but they explained in detail why here, in their expert view, it did not. The fact that a differently constituted Panel may have held a different view, or the same view by a different analysis, is not to the point. The Reasons well explain the approach taken and it is an approach that does not run contrary to what Campbell J said in Ryder. It is in fact an illustration of circumstances where a panel has reached the view that there was no difference in the outcome and the degree of impairment was not greater than it otherwise would have been as a result of the injury.

73. This ground fails and the summons must be dismissed.

Costs

76. The parties have agreed that each party will bear its own costs.

Orders

77. For the reasons I have given, I make the following orders:

1. Leave to commence proceedings out of time to argue grounds 1 to 4(a) of the summons is refused.

2. Summons is otherwise dismissed.

3. Each party to bear their own costs.

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Decision last updated: 11 August 2023