State of New South Wales v Wright

[2023] NSWSC 757

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

State of New South Wales v Wright [2023] NSWSC 757

Hearing dates:

27 June 2023

Date of orders:

4 July 2023

Decision date:

04 July 2023

Jurisdiction:

Common Law

Before:

Basten AJ

Decision:

(1)   Set aside the decision of the Appeal Panel of the Personal Injury Commission dated 7 November 2022 and the Certificate of Determination issued by the Commission dated 2 December 2022.

(2)   Declare that the Appeal Panel erred in law in failing to find that in issuing the Medical Assessment Certificate dated 16 August 2022 the Commission exceeded its jurisdiction because the medical assessor did not give effect to the estoppel arising from the determination of the Workers Compensation Commission of 6 November 2020, Order 5.

Catchwords:

ADMINISTRATIVE LAW – judicial review – Appeal Panel of Personal Injury Commission – appeal from medical assessor – error of law as to jurisdiction – taking into account exacerbation of injury caused by later conduct of employer – effect of later conduct determined in favour of employer by earlier award

WORKERS COMPENSATION – medical assessment – psychological injury – causation – bullying and harassment at work – award for worker as to conduct up to deemed date of injury – award for employer as to subsequent conduct – medical assessor took into account exacerbation of injury caused by later conduct of employer

Legislation Cited:

Crown Proceedings Act 1988 (NSW), s 5

Health Services Act 1997 (NSW), ss 17 (and Sch 1), 22, 115, 116

Personal Injury Commission Act 2020 (NSW), s 6

Supreme Court Act 1970 (NSW), s 69

Workers Compensation Act 1987 (NSW), ss 4, 9A, 11A, 15, 16, 65, 65A

Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 293, Pt 7, ss 319, 322, 328

Cases Cited:

Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4

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

Seaib v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36

Skates v Hills Industries Ltd [2021] NSWCA 142

Somanader v Minister for Immigrationand Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677

Texts Cited:

NSW workers compensation guidelines for the evaluation of permanent impairment (4th ed, March 2021)

Spencer Bower and Handley, The Doctrine of Res Judicata (4th ed, 2009, Lexis Nexis)

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Paul Wright (First Defendant)
President, Personal Injury Commission of New South Wales (Second Defendant)

Representation:

Counsel:
P Perry (Plaintiff)
D Hooke SC / B McManamey (First Defendant)

Solicitors:
Turks Legal (Plaintiff)
Carroll & O’Dea Lawyers (First Defendant)

File Number(s):

2023/00033956

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Personal Injury Commission

Jurisdiction:

Medical dispute

Date of Decision:

7 November 2022

Before:

Mr Marshal Douglas, Dr Nicholas Glozier, Dr Douglas Andrews as an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)

File Number(s):

M1-W2218/22

JUDGMENT

1. BASTEN AJ: Paul Wright (“the worker”), ^[1] who worked for the Western Sydney Local Health District as a courier driver from August 2012 until about April 2019, has made a claim against the State of New South Wales (“the employer”). ^[2] He claimed that he had been the subject of bullying, harassment and other forms of mistreatment by his supervisor, resulting in a psychological condition which left him unable to work. On 7 September 2020, he filed an application in the Workers Compensation Commission claiming weekly benefits and medical expenses. On 6 November 2020, he obtained a determination for weekly payments for the period from 6 December 2018 to 7 November 2019, based on a deemed date of injury of 5 December 2018.

   1. Although the terms “worker” and “employer” are generic and impersonal, they are used to avoid confusion: Mr Wright was the applicant in the Commission, the respondent before the Appeal Panel and the defendant in this Court.

   2. The State is sued as the employer pursuant to the Crown Proceedings Act 1988 (NSW), s 5; while the Western Sydney Local Health District is a body corporate, it is not an employer: Health Services Act 1997 (NSW), ss 17 (and Sch 1), 22(2), 115 and 116.

2. On 8 April 2022, the worker filed a further application in what had become the Personal Injury Commission^[3] seeking to resolve a dispute as to the payment of lump sum compensation, where the degree of his permanent impairment was in dispute. A criterion for payment of a lump sum benefit was an assessment of whole person impairment of not less than 15%. ^[4] That matter was referred to a medical assessor who determined whole person impairment of 19%, entitling the worker to an amount of lump sum compensation in the order of $50,000.

   3. The institutional change took place on 1 March 2021 with the commencement of the Personal Injury Commission Act 2020 (NSW), s 6.

   4. Workers Compensation Act 1987 (NSW), s 65A(3).

3. The employer appealed from that decision to an Appeal Panel on the basis that the assessment contained a “demonstrable error”. On 7 November 2022, the appeal was dismissed. The present proceeding seeks judicial review of the decision of the Appeal Panel.

Basis of judicial review

4. Pursuant to a further amended summons filed in Court on the hearing of the application, the employer relied upon 12 grounds, some of which alleged error “in fact”, others of which alleged errors “at law” and others a denial of procedural fairness, constituting jurisdictional error. It was not in dispute that the supervisory jurisdiction of the Court, invoked pursuant to s 69 of the Supreme Court Act 1970 (NSW), required that the employer establish either jurisdictional error or error of law “on the face of the record”. Succinctly stated, the error on the part of the medical assessor, not accepted as such by the Appeal Panel, was a failure to confine the inquiry in relation to whole person impairment to the terms of the matter in dispute between the parties. If made good, the error might be identified either as an error of law on the face of the record, the record being the reasons of the Appeal Panel, or a jurisdictional error, in so far as the assessor exceeded his powers under the referral of the medical dispute, properly identified.

5. The nature of the issue requires further identification by reference to the procedural history in the Commission. It is common ground that, if the employer’s complaint is made good, the appropriate course is to set aside the decision of the Appeal Panel and remit the matter to the President of the Personal Injury Commission.

Scope of medical dispute

6. As explained by Leeming JA in Skates v Hills Industries Ltd,^[5] the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”), makes provision for referral of a “medical dispute” for assessment in Pt 7 of the Workplace Injury Act. The referral in the present case was made under s 293 of the Workplace Injury Act. What is to be referred, is a “medical dispute”, a term defined in s 319 to mean “a dispute between a claimant and the person on whom a claim is made about any of the following matters … (c) the degree of permanent impairment of the worker as a result of an injury”.

   5. [2021] NSWCA 142 at [47].

7. As Leeming JA further explained in Skates, the purpose of the referral is to resolve the medical dispute. ^[6] All the relevant provisions “proceed on the basis that the outcome of the assessment is the resolution of the medical dispute”. ^[7] To determine whether the medical assessor exceeded his jurisdiction, it is therefore necessary to identify the scope of the medical dispute which was referred to him.

Scope of medical dispute

6. Skates at [46].

7. Skates at [47].

Lump sum claim

8. On 8 April 2022, the worker’s solicitors filed an application to resolve a dispute (ARD) with the Personal Injury Commission. Under the heading “matters in dispute”, the particular item ticked was “Lump sum compensation where degree of permanent injury is in dispute”. The application revealed that there had been a previous proceeding in the Commission, being matter 5068/20. Under the heading “Injury Details”, the type of injury was identified as “Disease” and the “deemed” date of injury as 20 May 2021. The place was identified as “within the environs of the respondent’s premises”. The injury was described in the following terms:

“The Applicant has sustained a psychological injury as a result of interpersonal conflict in the course of his employment with the Respondent.”

9. The whole person impairment percentage was identified as “19” and the amount of the payment sought was $50,260.

10. On 29 April 2022, the employer’s solicitors filed a reply which annexed numerous documents not before this Court. Under the heading “matters in dispute” (as set out in annexure A to the reply) the following statement appeared: ^[8]

    8. “ARD” was the abbreviation for “application to resolve dispute”.

“1   The ARD pleads the Applicant’s injury as occurring on 20 May 2021 (deemed) and describes the injury as follows:

The Applicant has sustained a psychological injury as a result of interpersonal conflict in the course of employment with the Respondent.

2   In matter number 5068/20, the Applicant and Respondent agreed to an award in respect of any allegation of injury relating to interactions subsequent to 5 December 2018. This is outlined in the Certificate of Determination dated 6 November 2020.

3   The Respondent accepts that the date of injury can be 20 May 2021 for the purpose of the lump sum compensation claim, however, a teleconference is sought to have the allegation of injury in the ARD amended to the following:

The Applicant has sustained a psychological injury as a result of interpersonal conflict in the course of employment with the respondent between 20 August 2012 and 5 December 2018.

4   If the Applicant consents to the amendment, a teleconference is not    required.”

11. The proposed amendment was agreed to, so that the allegation of injury referred to the medical assessor was in the terms set out in par 3 of the reply.

12. It was not in dispute that the psychological conditions alleged constituted a “disease” for the purposes of s 4 (b) of the Workers Compensation Act, and that the disease was either one of such a nature as to be contracted by a gradual process (for the purposes of s 15 of that Act) or consisted of the aggravation, acceleration, exacerbation or deterioration of a disease (for the purposes of s 16 of that Act). These sections provided that the date on which such an injury was deemed to have occurred was, relevantly, either the date of incapacity or the time at which a claim for compensation was made.

13. There is no doubt that the medical assessor (Dr Michael Hong) correctly understood the period during which the injury was said to have occurred: he identified it in a number of places in his written determination. It was also not in doubt that the medical assessor was entitled to have regard to evidence as to matters relevant to the worker’s condition between the date of injury and the date of the assessment. The assessment will only be undertaken when the worker’s condition has stabilised: ^[9]

1.15   Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.

9. NSW workers compensation guidelines for the evaluation of permanent impairment (4th ed, March 2021) (“Guidelines”).

14. The medical assessor’s reasons are required to provide certification that the impairment is permanent and to identify the degree of impairment. Section 8 of the assessor’s reasons followed a template, addressing specific issues. Paragraph g asked, “whether there has been any further injury subsequent to the subject work injury”. The note to the question stated:

“If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.”

15. The medical assessor answered this question with the statement, “no further injury”. In this Court, the principal issue was what was to be inferred from the statement “no further injury”. The employer’s contention was founded upon par 2 of its reply, namely that the Commission had made an award (by consent) in relation to allegations of injury relating to interactions between the worker and his supervisor and colleagues in the workplace after 5 December 2018. It was necessary, therefore, to identify the scope of this award which, it was submitted, confined the nature of the dispute before the medical assessor.

Weekly benefit claim

16. The earlier claim, 5068/20, lodged by the worker’s solicitor on 7 September 2020, sought weekly benefits and medical expenses, with the date of injury being identified as a deemed date of 9 August 2018. The description of the injury given in the claim form was as follows:

“Psychological injury

The Applicant, during the course of his employment was bullied, harassed, subject to an exclusionary alliance and mobbing by his line manager and another co-worker and subject to victimising and unnecessary performance management review and was provided with no managerial support, thereby causing, aggravating, exacerbating and/or precipitating the injury described above.

The Applicant initial adjustment disorder into [sic – developed into?] a major depression which required him to be hospitalised twice, thereby exacerbating the state of the original injury described above.”

17. This description was imprecise as to the scope and timing of the injury. The conduct identified in the first sentence was said to (on the one hand) cause or precipitate the psychological injury and (on the other hand) to aggravate or exacerbate what must have been an existing condition. His evidence did not support a pre-existing condition; rather the second sentence suggested that the work injury commenced as an adjustment disorder and later became a major depression. The hospital admissions both occurred in 2020.

18. The type of injury described as “aggravation, acceleration or exacerbation or deterioration of disease” derives from the element of the definition of “injury” in s 4(b)(ii) of the Workers Compensation Act. It may be noted that the terms “aggravation” and “exacerbation” imply some further work-related event or conduct having that effect, whilst “acceleration” and “deterioration” imply an ongoing process without necessarily any additional causative event or conduct.

19. A worker’s condition may deteriorate over time, following an injury, without giving rise to a further injury. The injury identified in s 4(b)(ii) of the Workers Compensation Act imposes a limitation, namely “… but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”.

20. Returning to the weekly benefit claim, a Certificate of Determination was issued on 6 November 2020 which commenced with an order in the following terms:

“1   Amended ARD as follows: under the heading Injury Details by deleting the date of injury appearing there and replacing it with 5/12/18, by placing a tick in the box for ‘deemed’, and adding the following to the words appearing after injury description/cause of injury:

In addition, in the course of employment subsequent to 5 December 2018, as a result of the applicant’s interactions with his supervisors, fellow employees and officers of the defendant and as a result of his perceptions that his employment was at risk and that he was being bullied, he suffered further aggravation and exacerbation of a psychological condition (‘the additional injury’).”

The effect of the added paragraph was to resolve the ambiguity in the initial formulation, so as to specify that there was a claim of a further work-related injury subsequent to 5 December 2018. It covered a further period of employment in February/March 2019.

21. Order 2 was an award in favour of the worker of weekly compensation for the period 6 December 2018 to 7 November 2019. Order 3 was an award in favour of the employer “in respect of any allegation of incapacity beyond 7 November 2019”. Order 5, read as follows:

“5   Award for the Respondent in respect of the additional injury alleged and specified in Order 1 above.”

The worker submitted that these orders could only relate to circumstances prior to the making of the determination on 6 November 2020, but nothing turns on that limitation for present purposes.

Issues on review

22. The employer’s contention, based on the effect of orders 1 and 5, was not that the medical assessor could not take account of any change in the worker’s condition after 5 December 2018: rather, it was that the assessor could not take into account any aggravation or exacerbation of his condition caused by further interactions with his supervisor and work colleagues in the period during which he returned to work in late February and early March 2019. The employer submitted that the medical assessor had taken into account the matters identified as the “additional injury” despite the exclusion of those considerations from the scope of the dispute pursuant to the consent determination of 6 November 2020. Further, the employer submitted, the scope of the medical dispute was a question of law and, if the medical assessor (and the Appeal Panel) failed properly to identify the scope of the medical dispute, that was a matter which could be corrected by this Court.

23. Senior counsel for the worker contended that the employer’s case turned in large part on Dr Smith’s reports, and in particular the opinion expressed in his report of 16 June 2020: ^[10]

“… Mr Wright has developed an adjustment disorder over the course of 2019. … By Mr Wright’s own account, his mental state deteriorated rapidly after this and by 14 January 2020, he was actively suicidal and planning on killing himself. I consider this an aggravation of an adjustment disorder which had developed over the course of 2019.”

10. Tcpt, 26/06/23, p 21(10), referring to the plaintiff’s written submissions, 28 April 2023, par 42.

24. The worker submitted that this opinion was, as a matter of fact, not accepted by the medical assessor, a conclusion which was open to him and not subject to appeal or review. The medical assessor formed the opinion that a psychological condition had arisen prior to 5 December 2018, resulting from work-related conduct of the employer. That finding did not constitute the demonstrable error relied upon before the Appeal Panel. Accordingly, the primary basis of the employer’s case was misconceived.

25. Otherwise, the worker’s response was reduceable to the following propositions:

1. the determination in order 5 referred to an “alleged” additional injury, leaving open the question as to whether there was any such injury, and thus permitting the medical assessor to proceed on the basis that there was not, if that were his medical judgment;

2. the medical assessor did not identify any “additional injury” of the kind referred to in the consent determination and therefore any constraint imposed by the consent determination was not engaged;

3. the medical assessor did not rely upon any additional injury, but merely the deterioration over time, subject to fluctuations, of the applicant’s medical condition; and

4. the Appeal Panel was entitled to accept that the medical assessor proceeded on this basis, which was open to him.

26. Before addressing these submissions, it is convenient to identify the relevant steps in the reasoning of the medical assessor and, on appeal, in the reasoning of the Appeal Panel.

Reasoning of medical assessor

27. As noted above, the medical assessor correctly identified the deemed date of injury and the period to which it related. He further identified the State as the applicant’s employer and his occupation as a courier driver. The first substantial section in the reasons was section 4, entitled “History relating to the injury”. Although the worker submitted that this section merely set out background information supplied by him to the assessor, it, together with a brief passage dealing with findings on physical examination, constituted three pages of an eight-page report. The other major section was section 10, entitled “Reasons for assessment”. As will be noted, the assessor, understandably, placed significant weight on the history provided by the worker.

28. The first section of the history commenced with the following passages:

“The issue at work predominantly related to Mr Wright’s manager. … He does not understand why she would pick on him, and described that he was subject to mobbing behaviour, excluded by people because of her, and also repeated passive aggressive behaviour.

He reported that he became sick of the constant harassment and thought about making a complaint in 2015. …

The most significant incident happened in December 2018 and that was when Mr Wright first stopped working. He received treatment and returned to work, but then psychologically deteriorated. He explained there were further problems when he went back to work.”

(Although the medical assessor did not refer to the timing, it was common ground that the worker attempted a return to work in February and March 2019.) The account continued:

“He recalled there were changes being made at work, and the drivers were being transferred to Liverpool and he was looking forward to it because it meant he would not be reporting to the same manager. Suddenly management called him and said that his job was gone, he needed to apply for the Liverpool position but the application closed the next Monday. He then discovered that all the other drivers knew they needed to apply in advance, and that again he was the only person being singled out.

…

He said the return-to-work coordinator advised him he should change department to get away from the manager, he just needed to have a [psychiatric] report in support. However, even though he did all that was required, a return to work never happened. He said he was stood down and was told there was no job available for him anymore.”

29. Some of the history, with additional detail, was repeated in a subsequent passage in section 4 headed “Background history”. It reads as follows:

“Mr Wright had been working at Westmead Hospital as a full-time courier and started in 2012. After his injury he tried to go back to work around April 2019, three hours a day, three days a week. He said it lasted about six weeks. He recalled he had a meeting with a higher manager before returning to work and was told that he would not be reporting to the same manager who bullied him, that he would report to another worker and the higher manager. However, when he started work, the higher manager did not turn up and the other worker did not know anything about the arrangement. The manager who bullied him returned to work, and he said that she continued to bully him through the other workers, for example they claimed he has not done the mandatory training online module. He explained to them that he did it, but later discovered that he needed 95% to pass, so even though he did the module he did not pass it. He said there was still ongoing problem. She was still harassing him through other people, and eventually he had to stop work.”

30. In his “summary of injuries and diagnoses” (section 7) the assessor stated:

“Mr Wright described having developed persisting anxiety and depression, as a result of his employment and interaction with his manager. He described difficulties in returning to work. Since he ceased work with Westmead Hospital, he has not been able to attempt other employment and described chronic functional impairment. Overall, my view is that he developed a Major depressive disorder and his impairment has stabilized.”

31. As noted above, the assessor concluded in section 8 that there was no “further injury subsequent to the subject work injury”.

32. The reasons for assessment (section 10) commenced with a very brief paragraph referring to the worker’s “numerous statements” and his “major issue relating to his manager”. The passage noted the worker’s further statement which “discussed the return-to-work problems”. The assessor then addressed, with comments, the reports of Dr Michael Robertson, psychiatrist, reports from the St John of God Hospital, and from Dr Clayton Smith, psychiatrist.

33. With respect to the first report of Dr Michael Robertson of 28 May 2019, the assessor stated that he:

“noted similar work history and that Mr Wright could not tolerate work trial in March 2019.” There is a longstanding pattern of bullying in relation to his line manager and also a co-worker. He stopped work after an argument and accusation from her.”

34. The assessor also referred to a report by Ms Raj, psychologist, of 19 March 2019, who noted “adjustment disorder due to harassment by manager and the report consistently identified depression and anxiety, as well as noting the return-to-work problems”.

35. With respect to the first report of Dr Clayton Smith of 18 January 2019, the assessor observed that there was “no psychiatric diagnosis, he could return to work”. On 18 March 2020, Dr Smith reported “deterioration in 2019 because he was stuck at home obsessing over what happened at work, and he advised it appeared he developed an adjustment disorder”. The assessor also referred to Dr Smith’s report of 16 June 2020, which advised that “Mr Wright suffered an aggravation of an adjustment disorder during 2019, especially December 2019 due to decision to relocate position in Liverpool, which required him to reapply for his position and he felt ambushed”. (The relevant date should have been earlier in 2019.)

36. It is self-evident that lengthy consideration was given to events which occurred in the workplace after 5 December 2018 involving the worker’s manager and work colleagues. On the face of the reasons there is no suggestion that Dr Hong appreciated, or had regard to, any limitation on the use that could be made of the “return-to-work problem” which eventuated after 5 December 2018.

Reasoning of Appeal Panel

37. The submissions made by the employer in this Court were also raised in written submissions in support of its appeal to the Appeal Panel. There is no occasion to summarise those submissions, as they will be addressed to the extent necessary in explaining the reasoning of the Appeal Panel.

38. The dispositive passage in the Appeal Panel’s reasons (pars 35-43) commenced with the proposition that “by virtue of Orders 1 and 5 made in the earlier proceedings in the Workers Compensation Commission, neither party can contend that the [worker] suffered what is therein described as ‘the additional injury’”. ^[11] The Panel accepted that a consent order can create a res judicata estoppel or an issue estoppel. ^[12] The Panel then turned to consider what the parties meant by the term “additional injury”. The reasons continued:

“39   … It seems to the Appeal Panel that based on that Certificate of Determination, when considered objectively, what was agreed by the parties was either one of two things. Either it was that the circumstances the respondent had alleged to have occurred in his workplace after 5 December 2018 did not occur or otherwise those circumstances did occur but they did not give rise to any injury separate to what the respondent suffered on 5 December 2018. It seems to the Appeal Panel, given there was an award for the appellant with respect to the ‘additional injury alleged’ (Appeal Panel’s emphasis), and not an award with respect to any claim for compensation to which the respondent might have been entitled as a consequence of an incapacity for work from or treatment received for any such alleged injury, that the parties agreed there was no such injury.”

11. Appeal Panel reasons, par 37.

12. Ibid, par 38, referring to (citations corrected) Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677 at 686; Seiab v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36; Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 at [33]; Spencer Bower and Handley, The Doctrine of Res Judicata (4th ed, 2009, Lexis Nexis) at [38].

39. Two points may be made in relation to this reasoning. First, order 1 involved an amendment to the worker’s claim. It expanded the worker’s claim to cover post-injury conduct of the employer. That order 5 referred to an “alleged” additional injury, implied that the claim was rejected whether or not the matters alleged could be substantiated. As the Appeal Panel noted, there could have been an injury resulting from the employer’s conduct which was non-compensable, because it was wholly or predominantly caused by reasonable action taken with respect to the transfer, performance appraisal or other steps identified in s 11A(1) of the Workers Compensation Act. There is nothing unusual in a court or tribunal ruling that a claim must be dismissed on an assumption that the facts alleged are established, because the defendant has a complete defence on other grounds. Reliance on the phrase “alleged additional injury” in order 5, a reliance repeated by the worker in this Court, is not significant.

40. Secondly, the attempt to identify what was meant by the phrase “additional injury” is confused. The phrase was simply a shorthand term to identify a claim by the worker that “in the course of employment subsequent to 5 December 2018, as a result of the worker’s interactions with his supervisors, fellow employees and officers of the [employer] … he suffered further aggravation and exacerbation of a psychological condition”. The effect of order 5 was to reject that claim. It followed that a complaint that the conduct of the employer had resulted in further aggravation and exacerbation of a psychological condition arising before 5 December 2018, could not be pursued. It further followed that the medical assessor should have identified and excluded any such aggravation or exacerbation from his assessment of the injury caused by the conduct preceding 5 December 2018.

41. The Appeal Panel did not reach those conclusions. Rather, the reasoning continued:

“40   The Medical Assessor assessed the respondent’s psychiatric impairment based on how the respondent presented at the time the Medical Assessor examined the respondent. The Medical Assessor noted that the psychiatric impairment he assessed the respondent to have was not due to any pre-existing condition and was not due to the respondent’s reaction to the death of his father in December 2020. The Medical Assessor noted in the MAC at 8.g that the respondent had not suffered any further injury from that which the Medical Assessor was assessing, being the injury specified in the MAC as ‘5 December 2018 – deemed (for the period 20 August 2012 to 5 December 2018)’.”

42. Each of these sentences is correct as a matter of fact, but they do not address the employer’s contention. The employer submitted that the medical assessor’s rejection of the proposition that the worker had suffered any further injury (at par 8g) was in fact a conclusion supported by his earlier finding that the worker’s reaction to the death of his father did not cause psychiatric injury. The real issue was how the medical assessor had dealt with a history (which he clearly accepted) that included the worker’s response to the employer’s conduct when he sought to return to work in February/March 2019. The issue for the Appeal Panel was whether, despite the absence of any discussion by the assessor of that issue, it could be inferred that he had rejected the possibility that the applicant’s condition was aggravated or exacerbated by that conduct of the employer.

43. What followed in the Appeal Panel’s reasoning (at par 41) commenced with the phrase “in arguendo”, and identified a possible understanding as to what the estoppel did not achieve, which was explained as “a hypothetical given what the Appeal Panel has said about the estoppel that did arise from the prior award”. The first sentence had convoluted syntax which need not be repeated. The first six lines sought to characterise a different basis for the estoppel in a series of dependent clauses, but appear to have been summarised in the following terms, “in other words the respondent can contend in these proceedings that there was a subsequent ‘additional injury’”. (The term “respondent” must be a mistake and intended to refer to the appellant/employer.) What followed from that, the reasons continued, was that the additional injury “did not arise from the same incidents as the incidents from which the injury on 5 December 2018 occurred”. That was said to have consequences in that “s 65(2) of the [Workers Compensation Act] and s 323(3) [sic, s 322(3)] of the [Workplace Injury Act] could not be engaged”. (Whether or not they were engaged was not an issue raised by either party in this Court.)

44. The reasoning continued:

“However, in such a circumstance, the authority of Johnson and Ozcan would apply such that the Medical Assessor would have been required to apply common law principles of causation to determine the degree of permanent impairment the respondent had from his injury of 5 December 2018. The situation would have been, in such circumstance, that the respondent’s condition as a result of his injury on 5 December 2018 was worsened by the ‘additional injury’ and that no part of the worsening of the respondent’s condition would have been occasioned if the injury of 5 December 2018 had not occurred. In other words, the worsening of the respondent’s symptoms and function consequent to what occurred after 5 December 2018 was causally connected to the injury the respondent suffered on 5 December 2018.”

45. It is not necessary for present purposes to analyse how common law principles of causation operate in the statutory context where the Act itself contains several provisions identifying relevant causal connections, including ss 4(b), 9A(1) and 11A(1). The point is rather that, on the employer’s case, the award in the earlier proceedings had rejected the claim that in the course of his employment subsequent to 5 December 2018 the worker suffered further aggravation or exacerbation of a psychological condition. It is that determination which should have prevented the worker from relying upon such conduct as causally connected with the earlier injury. This aspect of the reasoning of the Appeal Panel failed to address that contention as to the effect of the earlier determination.

46. Lest there be doubt about that conclusion, the Appeal Panel continued:

“42   Moreover, it is trite that an impairment of a worker can have multiple causes. If the estoppel arising from the consent award in the prior proceedings did not relate to the occurrence of events as alleged by the respondent subsequent to 5 December 2018 or to an alleged injury due to those events, then the situation would be that both injuries, that is the injury of 5 December 2018 and the ‘additional injury’, would have materially contributed to the respondent’s impairment, with the predominant contributor, in the Appeal Panel’s view, having been the injury of 5 December 2018. In such a hypothetical scenario, the Medical Assessor would have been right to attribute the respondent’s 19% WPI from the 5 December 2018 injury.”

47. This paragraph stated another hypothetical situation, with the second sentence commencing, “if the estoppel …”. Taken literally, the reasoning is correct: it is simply irrelevant because no effect is given to the estoppel arising from the earlier determination.

48. The final paragraph in the Appeal Panel reasoning was as follows:

“43   In short, the Appeal Panel considers that the Medical Assessor has not made an error with respect to his assessment of the respondent’s permanent impairment from his injury on 5 December 2018. The Medical Assessor has assessed the medical dispute that was referred to him for assessment, being the respondent’s permanent impairment from the injury referred to him for assessment, being the respondent’s permanent impairment from the injury of 5 December 2012 [sic, 2018]. But whichever way the matter is analysed, that is if there was ‘an additional injury’ or if subsequent events contributed to the respondent’s impairment, the result would be the same.”

49. Again, the passage ignores the effect of the estoppel.

Conclusions

50. There was no dispute in this Court (or before the Appeal Panel) that the earlier determination could give rise to an estoppel.

51. The effect of orders 1 and 5 in the determination of 6 November 2020 was that the worker did not suffer any further aggravation and exacerbation of his psychological condition as a result of conduct of the employer after 5 December 2018. The history recorded by the medical assessor in his reasons for determination included repeated references to the worker’s claims of ongoing bullying and harassment in 2019. There was no suggestion that the medical assessor disregarded those claims, nor that he determined that they had no effect in aggravating or exacerbating the worker’s psychological condition. That conclusion does not, as the worker submitted in this Court, adopt the approach excoriated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,^[13] to construe reasons for decision “minutely and finely with an eye keenly attuned to the perception of error”. Rather, it is to draw the only reasonable inference from the omission of the assessor to pay any regard to the terms of the earlier order and the definition of “additional injury”.

    13. (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.

52. It follows that the Appeal Panel was also in error in failing to identify an excess of jurisdiction on the part of the medical assessor in taking into account factors which he was required not to take into account.

53. It is convenient to return to the worker’s submissions identified at [24]-[26] above. First, contrary to the worker’s primary submission, the employer’s case did not turn on the factual finding of Dr Smith that a psychological injury first arose in the period after 5 December 2018. Rather, it turned on the proposition that order 5 required the assessor to disregard any evidence of exacerbation or aggravation of the worker’s condition arising from work-related events after 5 December 2018. That was what was identified in order 1 as being the “additional injury” relied on by the worker. Contrary to Dr Smith’s opinion, the language of the additional injury assumed that there had been a psychological injury caused by the employer’s conduct prior to 5 December 2018.

54. The worker’s reliance on the fact that order 5 referred to an “alleged additional injury” has been addressed in considering the reasoning of the Appeal Panel. The term “alleged” referred to the fact that the additional injury identified in order 1 was by way of addition to the details of injury identified in the worker’s application to the Commission.

55. The remaining submissions of the worker relied on the proposition that the medical assessor did not make a finding that there had been any further injury in the period after 5 December 2018. That the assessor did not make such a finding in terms may be accepted. However, that submission did not come to grips with the employer’s complaint that the worker gave evidence, plainly accepted by the medical assessor, that his existing psychological condition was aggravated by further bullying and harassment in the workplace in February/March 2019. By relying on that aggravation, caused by work-related conduct, the assessor ignored the limitation on the terms of the dispute which he was required to resolve.

50. It follows that the employer’s claim for judicial review should be upheld.

Orders

57. In considering the appropriate orders, that which should be quashed is the order made by the Appeal Panel on 7 November 2020 as encapsulated in the certificate of determination issued by the Personal Injury Commission dated 2 December 2022.

58. The employer also sought a declaration that the statement of reasons is void and of no effect and an order setting aside the statement of reasons. Although it is common-place to make orders setting aside “the judgment and orders” of a court, that is because the phrase “judgment and orders” may be viewed as a hendiadys: there is no appeal from reasons and the reasons alone have no operative effect. Accordingly, it is not appropriate to make orders in those terms.

59. Both parties accepted that the consequence of success on the part of the employer was that the matter should be remitted to the President of the Personal Injury Commission for referral to an Appeal Panel differently constituted, under s 328 of the Workplace Injury Act.

60. However, it follows from the error of law identified in the Panel’s reasons, that it was not open to the Panel to conclude that the medical assessor had given effect to the legal consequence of the earlier determination of the Commission. If that be correct, the referral back for reconsideration by an appeal panel is an unnecessary step because, if the appeal were determined according to law, it must result in the setting aside of the medical assessment certificate.

61. Although there may have been doubt under the general law as to the power of the Court exercising the supervisory jurisdiction to grant the relief which an appeal panel should have granted, the Court now has statutory power to make such an order pursuant to s 69(3)(b) of the Supreme Court Act 1970 (NSW), which states that “if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, [the Court has] jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. As the employer did not seek such an order and as it is not strictly necessary, such an order should not be made; however, the same practical effect can be had by making a declaration as to the basis upon which the Court has set aside the determination of the Appeal Panel.

62. As the employer did not seek costs in the event that it was successful; no order should be made as to the costs of the proceedings in this Court.

63. Accordingly, the Court makes the following orders:

1. Set aside the decision of the Appeal Panel of the Personal Injury Commission dated 7 November 2022 and the Certificate of Determination issued by the Commission dated 2 December 2022.

2. Declare that the Appeal Panel erred in law in failing to find that in issuing the Medical Assessment Certificate dated 16 August 2022 the Commission exceeded its jurisdiction because the medical assessor did not give effect to the estoppel arising from the determination of the Workers Compensation Commission of 6 November 2020, Order 5.

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Endnotes

Decision last updated: 04 July 2023