Symbion Health Ltd v Hrouda

[2010] NSWSC 295

CITATION:	SYMBION HEALTH LIMITED v HROUDA & ANOR [2010] NSWSC 295
HEARING DATE(S):	Tuesday 15 December 2009
JUDGMENT DATE :	21 April 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	(1) The summons is dismissed. (2) Subject to (3) below, the plaintiff is to pay the first defendant’s costs. (3) If the plaintiff wishes to argue that costs should not follow the event, liberty to apply within 10 days of judgment.
CATCHWORDS:	STATUTORY INTERPRETATION – whether Guideline 45 of the Workcover Medical Assessment Guidelines which permits an Appeal Panel to conduct an "On the Papers" review is inconsistent with the provisions of s.328(1) of the Workplace Injury Management and Workers Compensation Act 1998 ("An appeal against a medical assessment is to be heard by an Appeal Panel ...") and therefore invalid – no inconsistency – issue determined by decision in Estate of Brockmann v Brockmann Metal Roofing Limited & Ors – reasons for judgment of Studdert J in that case followed and applied - ADMINISTRATIVE LAW – procedural fairness – claimed breach of the ‘hearing rule’ in circumstances where an Appeal Panel raised an issue of causation for further submissions – plaintiff employer in response sought a ‘hearing’ – request refused and final decision given by the Panel – no breach of procedural fairness requirements having regard to the statutory scheme and factual circumstances of the case
LEGISLATION CITED:	Supreme Court Act 1970 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Dar v State Transit Authority of NSW [2007] NSWSC 260 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 Kioa v West (1985) 159 CLR 550 Kooragang Cement Pty Limited v Bates (1994) 10 NSWCCR 796 Mobil Oil Australia Pty Limited v FCT (1963) 113 CLR 475 Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 21 CLR 1 Re Refugee Revue Tribunal; ex parte Ala (2000) 204 CLR 82 Russell v Duke of Norfolk [1949] 1 All ER 109 Skillen v MKT Removals Pty Limited & Ors [2007] NSWSC 608 Smith v Liquip Services Pty Limited & Ors [2007] NSWSC 687 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Stead v State Government Insurance Commission (1986) 161 CLR 141
PARTIES:	SYMBION HEALTH LIMITED v LILY HROUDA & ANOR
FILE NUMBER(S):	SC 09/298068
COUNSEL:	P: P Perry 1D: B McManamey
SOLICITORS:	P: Leigh Virtue & Associates 1D: Slater & Gordon 3D: I V Knight

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

WEDNESDAY 21 APRIL 2010

2009/298068

SYMBION HEALTH LIMITED v LILY HROUDA & ORS

JUDGMENT

HIS HONOUR:

INTRODUCTION

1 The plaintiff, Symbion Health Limited (“Symbion”), brings proceedings by way of judicial review pursuant to s.69 of the Supreme Court Act 1970 in relation to a decision of a Medical Appeal Panel dated 12 June 2009.

2 Symbion was the employer of the first defendant, Ms Lily Hrouda.

3 On 3 September 2003, Ms Hrouda sustained injuries in a motor vehicle accident which occurred on a journey from her place of abode to her place of employment.

4 A medical assessment was made by Dr Brian Williams, inter alia, of Ms Hrouda’s level of impairment in respect of her loss of sense of smell as a result of injury sustained in the above accident. Dr Williams issued a Medical Assessment Certificate (referred to as a “MAC”) dated 21 January 2009 (Exhibit C to Mr Taylor’s affidavit sworn 15 July 2009)

5 Symbion brought an appeal against the medical assessment to the Registrar of the Workers Compensation Commission pursuant to s.319 of the Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”).

6 The second defendant to the present proceedings is an Appeal Panel of the Workers Compensation Commission constituted pursuant to s.328(1) of the WIM Act.

7 The panel was constituted by:-

• Mr Marshal Douglas – Arbitrator.

• Dr Joseph Scoppa – Approved Medical Specialist.

• Dr Paul Nial – Approved Medical Specialist.

8 The third defendant is the Registrar of the Workers Compensation Commission to whom, as noted above, the appeal against the above assessment certificate was directed.

9 On 12 June 2009, the Panel revoked the MAC and issued a new certificate allowing Ms Hrouda a greater assessment than had been allowed in the MAC (nine percent of Whole Person Impairment (“WPI”), as opposed to seven percent determined in the MAC).

10 In the Summons filed in this Court on 15 July 2009, Symbion, as plaintiff, relied upon the following grounds for relief:-

“1. The plaintiff, Symbion Health Limited, was formerly known as Mayne Group Limited, and in that name was the appellant in an appeal to the registrar of the Workers Compensation Commission against a medical assessment made pursuant to sec.319 of Workplace Injury Management and Workers Compensation Act, 1998 by Dr Brian Williams.
2. The first defendant, Lily Hrouda, was the respondent to the appeal to the Registrar. The first defendant was a worker employed by the plaintiff on 3 September 2003, on which date she sustained injuries in a motor vehicle accident occurring on a journey from her place of abode to her place of employment.
3. The second defendant is an appeal panel of the Workers Compensation Commission constituted pursuant to sec 328(1) of the WIM Act. The panel was constituted by:-
• Mr Marshal Douglas – Arbitrator
• Dr Joseph Scoppa – Approved Medical Specialist
• Dr Paul Niall – Approved Medical Specialist.
4. The third defendant is the Registrar of the Workers Compensation Commission, to whom the appeal against the MAC was directed.
5. The panel, on 12 June 2009, revoked the MAC and issued a new certificate allowing the first defendant a greater assessment than had been allowed in the MAC (nine per cent as opposed to seven per cent). In dealing with and in deciding the plaintiff’s appeal against the MAC, the Second Defendant erred:-
(i) In rejecting the plaintiff’s request to be heard in argument before the panel.
(ii) Where the third defendant, the Registrar, had determined that one of the grounds of appeal had been made out, in failing to consider, or in the alternative, to consider properly the argument advanced by the plaintiff on appeal.
(iii) In issuing a certificate to the effect that the first defendant’s impairment was greater than that originally certified, when the errors made at the time of the MAC were such as to indicate a lesser impairment.
(iv) In issuing a certificate allowing a greater assessment than originally certified, in the absence of any medical evidence or any evidence supporting such a conclusion.
(v) In allowing an assessment for loss of sense of smell, when no application to that effect had been made by the first defendant.
(vi) In revoking the MAC and issuing a new MAC, notwithstanding a finding that the earlier MAC ‘contained no error’.
(vii) In finding, contrary to the original assessment and without allowing the plaintiff to be heard that the first defendant’s loss of smell was the result of injury, rather than the causes identified by the author of the original assessment.
(viii) In failing to observe that the original assessment contained an error in its author’s failure to apply the deduction required by sec 323 of WIM in respect of the first defendant’s temporomandibular dysfunction, ignoring evidence that a dental splint had not restored full function to the temporomandibular joint.”

11 Although the grounds for relief are stated in the Summons to be those that are set out in paragraphs [1] to [5], the actual grounds pleaded are confined to those appearing in paragraph 5(i) to 5(viii) of the summons.

12 The written and oral submissions did not seek to suggest that each and every one of the grounds in paragraph 5(i) to 5(viii) raised a question of law. Indeed, several of the grounds set out in paragraph 5 were not argued at the hearing and do not raise alleged errors of law. A number of the sub-paragraphs in that paragraph raise factual matters going to issues of merit and, as such, do not constitute grounds for judicial review.

13 Application was made for the plaintiff to rely upon an “Additional Ground for Relief” and a supporting submission in the following terms:-

“1. At the hearing, the plaintiff will seek to add a further ground, namely:-
‘The Workcover Guidelines, and in particular Guideline 45 are invalid to the extent that they are inconsistent with the obligation imposed by sec 328(1). There is an error on the face of the record in the appeal panel’s refusing an application for a hearing, in the light of sec 328(1).
Supplementary submission :
2. It is acknowledged that this point has been decided adversely to the plaintiff in Brockman , referred to in the plaintiff’s submissions.
3. Nonetheless, the plaintiff submits that the argument of counsel for the plaintiff in Brockman , also advanced by counsel for the plaintiff in Dar (see [27]), is correct.”

14 Leave was granted to the plaintiff to rely upon the “Additional Ground for Relief”.

15 Mr P Perry of counsel who appeared for Symbion relied upon written submissions dated 7 December 2009 and these were supplemented with oral submissions at the hearing on 15 December 2009. In the latter submissions, it was noted that it was necessary to establish an error on the face of the record: t.2.

Proceedings before the Appeal Panel’s and the Panel’s Statement of Reasons

16 Section 327 of the WIM Act provides for an appeal process. A party to a medical dispute may appeal against a medical assessment but only in respect of a matter appellable under that section and on the grounds of appeal provided for in it.

17 Under s.327(4), the Registrar may constitute an Appeal Panel, provided it appears to the Registrar that one of the grounds for appeal specified in s.327(3) exists.

18 In relation to the disposition of an appeal, s.328 provides as follows:-

““328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

(2) The appeal is to be by way of review of the original medical assessment. The Workcover Guidelines may provide for the procedure on an appeal.

(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 unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant 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.”

19 In paragraph [54] of its Statement of Reasons, the Panel set out background and procedural matters. At paragraphs [13] to [18], under the sub-title “Decision made after preliminary review without holding an assessment hearing”, the Panel recorded as follows:-

“13. The Appellant sought an Assessment Hearing, saying that the ‘Appeal cannot be determined on the Papers in view of the nature and Grounds of the Appeal and in view of the requirement for an Arbitration of the issues which remain in dispute’. The Appellant did not indicate what it was about the nature of the Appeal that necessitated the need for an Assessment hearing, nor did the Appellant indicate what were the issues that remained in dispute that needed to be determined by an Arbitrator.
14. The Appellant in its subsequent written submissions also submitted it was ‘now more even imperative’ that the Panel hold an Assessment Hearing so that the Appellant could address an issue that it had not raised in its Appeal, but which the Panel itself had raised. The Appellant neither indicated why it had not addressed fully this issue in its further written submissions nor what it was about this issue that necessitated the holding of an Assessment Hearing.
15. The Respondent submitted that there was no need for the Panel to hold and [sic] Assessment Hearing.
16. As regards the Appellant’s suggestion that the Panel ought to hold an Assessment Hearing because issues remain in dispute that need to be determined by an arbitrator, the Panel notes that it has no power and therefore cannot determine in this Appeal, any such issue, assuming there is one. Any such issue must be determined by an arbitrator. That therefore is no reason for the Panel to hold an Assessment Hearing.
17. In regards to the issues that need to be considered by the Panel so as to determine this Appeal, including the issue that the Panel highlighted at its preliminary review and about which the Panel sought further submissions from the parties, the Panel considers that it has sufficient material before it to enable it to assess the Respondent’s impairment and therefore to deal properly with all relevant issues raised in the Appeal. Given this, and in the absence of any cogent reason being indicated by the Appellant as to why it is necessary to hold an Assessment Hearing, the Panel is of the view that it would derive no benefit in terms of its consideration and determination of the Appeal by holding an Assessment Hearing.
18. Accordingly, the Panel shall not hold an Assessment Hearing.”

20 The Panel proceeded to record its Findings and Reasons in paragraphs [20] to [35] inclusive. These incorporated the findings of the Approved Medical Specialist (“AMS”) following an examination of Ms Hrouda on 17 December 2008.

21 In paragraphs [33] of its Statement of Reasons, the Panel recorded the following:-

“The AMS expressed his view that the Respondent’s partial loss of her sense of smell was pre-existing and probably related to the Respondent smoking 10 cigarettes a day over a 35 year period preceding the accident. Given his view, the AMS, when assessing the Respondent’s permanent impairment from the injury to her ear, nose, throat and related structures, deducted the 2% WPI he assessed the Respondent to have from her loss of the sense of smell.”

22 Under the sub-heading “does the Respondent’s impairment from loss of her sense of smell result from her injury”, the Panel, as to the attribution by the AMS of Ms Hrouda’s impairment of her sense of smell to her history of smoking stated:-

“… Given the severity of the trauma that the Appellant sustained in the accident, which left her in a coma and amnesic for a period of seven weeks and hospitalised for 11 months, the Panel considers that it is more likely the case that the Respondent’s loss of smell resulted from this trauma. Therefore, the Panel is of the view that the AMS erred in not attributing the impairment to the Appellant’s injury, and to this extent, the Panel finds that the MAC contains a demonstrable error.”

23 The Panel noted, at [11] that all the documentation that had been sent to the AMS for the original assessment, had been taken into account by the members of the Panel in making the Panel’s determination.

Plaintiff’s submissions

24 Before the Appeal Panel, the plaintiff relied upon written submissions dated 16 February 2009, a copy of which was annexed to the affidavit of Mr Taylor.

25 In the seven paragraphs of those submissions, it was argued that the MAC of Dr Brian Williams demonstrated that it had been made on the basis of “incorrect criteria” and contained “demonstrable errors (paragraphs 6(a), (b) and (c)). It was contended on Symbion’s behalf that the appeal “cannot be determined on the papers” but without any precise identification of the matters that would make it apparent that that was so.

26 On 6 May 2009, the Appeal Panel informed the parties that it would be considering an issue which had not been raised by either party, namely:-

“Given that the respondent (the worker …) has not smoked since the motor vehicle accident on 3 September 2003, which accident resulted in her having a coma [sic] and having amnesia for 7 weeks did the AMS err in attributing the respondent’s partial loss of smell as a result of her smoking rather than the injuries she suffered in the accident.”

27 Symbion in its abovementioned submissions to the Appeal Panel dated 16 February 2009 and later in its supplementary submissions dated 15 May 2009 made a request to the Panel to address it.

28 In its submission, Symbion requested a hearing date:-

“In order to allow (the parties) (to) address an issue which did not form part of the appeal that has been raised by the panel on its own motion.”

29 In paragraphs [5] of Symbion’s written submissions in the present proceedings, it was stated:-

“In these submissions, particular weight is placed upon the fact that the party who had sought a hearing was not notified of the failure of that application prior to the panel giving its final decision on 12 June 2009, just over a month after it had notified the parties of its resolve to consider an issue that had not been raised, and less than a month after the plaintiffs’ request for a hearing.”

30 Symbion claimed that, in these circumstances, it had been denied procedural fairness. It was argued in this regard that a party who had (twice) requested “an assessment hearing” was, as a minimum:-

“… entitled to be informed that that request has been unsuccessful. Armed with the knowledge of the failure of his or her application, the party may take steps to protect his or her position in the appeal. The steps may include a further request for a hearing, particularly if the party seeking a hearing is of the view that there may be flawed reasoning in the denial of the application. Alternatively, if the party is aware that there will be no hearing, he or she may make application for leave to add a further written submission.”

31 It was contended that such a party is denied procedural fairness “if the refusal of his application for a hearing comes to him in the same document that rejects his appeal”.

32 The written submissions for Symbion extracted the following statements made by the Appeal Panel (at [13]):-

“The appellant did not indicate what it was about the nature of the appeal that necessitated the need for an assessment hearing.”

33 At [14]:-

“In its subsequent written submissions … the appellant neither indicated why it had not addressed fully this issue in its further written submissions nor what it was about this issue that necessitated the holding of an assessment hearing.”

34 At [17]:-

“… in the absence of any cogent reason being indicated by the appellant as to why it is necessary to hold an assessment hearing, the panel is of the view that it would derive no benefit in terms of its consideration and determination of the appeal by holding an assessment hearing.”

35 The argument presented by Symbion was that it was not for the Panel to speculate as to the benefit that it might derive from submissions until they are made. The Panel, it was contended, effectively judged in advance the appellant’s capacity to persuade it.

36 Additionally, Symbion, as noted above, complained that it had not been informed that there would be no “hearing” prior to its appeal being rejected.

37 Mr Perry contended that the absence of any notice to the plaintiff that its request for a hearing was declined before determination of the issue constituted an error of law by the panel of the type considered by Bell J in Dar v State Transit Authority of NSW [2007] NSWSC 260 at [68] and [69]. There, her Honour stated:-

“68 The Appeal Panel’s failure to take into account the plaintiff’s wish to have an assessment hearing and make oral submissions would only justify setting its determination aside if it was bound to take this consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 Mason J at 39. In determining whether the Appeal Panel was bound to take this consideration into account it is necessary to have regard to the functions of the Appeal Panel under the Act. The Appeal Panel exercises a function that is judicial in nature. Its determination has potentially significant consequences for the parties. An assessment hearing offers the injured worker an opportunity to be legally represented and to have oral submissions advanced on his or her behalf. A party may be permitted to cross-examine a witness at an assessment hearing. The proceedings are recorded. An assessment hearing may offer important procedural protections to a party to a medical dispute.
69 In this case the Appeal Panel was being invited by the defendant to find the degree of the plaintiff’s impairment to be less than that assessed by Dr Meakin who had examined him by reference to material, which included surveillance film at a review conducted “on the papers”. In my opinion the Appeal Panel was bound to take into account the plaintiff’s wish that there be an assessment hearing and his desire to make oral submissions at it. The failure to take this consideration into account is an error of the kind described in Craig in the passage that I have set out (at [29] above).”

The issue concerning the validity of Guideline 45

38 The submission for Symbion proceeded as follows:-

“18. The Guidelines are silent on the course to be adopted if one of the parties has sought that there be an assessment hearing.
19. Dar is authority for the proposition that the appeal panel is bound to take into account a party’s wish that there be an assessment hearing.
20. It is acknowledged that this matter is not on all fours with Dar , in that in Dar the appeal panel had proceeded on the erroneous assumption that both parties had consented to the matter being dealt with ‘on the papers’.
21. But in Dar , counsel for the plaintiff made the further submission, recorded by her Honour at [31]:-
‘Procedural fairness required that the plaintiff be informed of any decision by the appeal panel to determine the matter ‘on the papers’, in order that there may be an opportunity to be heard by way of written submissions on the merits of the case (rather than the merits of allowing an appeal to proceed to which the plaintiff’s submission(s) were directed).’
22. Her Honour recorded this submission. It is implicit, however, from her Honour’s reasoning that her Honour considered the submission sound. She said at [70]:-
‘In view of the conclusion to which I have come (with regard to ground 4) it is not necessary to deal with grounds 5 or 6 (the latter being a further ground which the plaintiff was given leave to rely on at the hearing).’”

39 The argument presented for Symbion in the present proceedings was as follows:-

“24. In Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235, an argument was put that sec 328(1) compels the panel to conduct a hearing.
25. The submission was rejected at [57] but Stoddard [sic – (Studdert)] J appeared to acknowledge the conflict between sec 328(1) and the guidelines by his Honour’s use of quotation marks to qualify the word ‘heard’:-
‘An appeal is to be ‘heard’ by a three person panel, but the practice direction and, more importantly, the guidelines contemplate that the appeal panel may determine how the appeal is to proceed.’
26. It is here submitted that while the decision in Brockmann is adverse to the proposition that the panel must hold a hearing in all matters, the wording of 328(1) and 328(4) strongly support the proposition that a party who seeks an assessment hearing ought not be denied, or at the very least, ought be notified that he or she will be denied a hearing, prior to the matter being determined against that party.”

An issue concerning the cause of the partial loss of the sense of smell

40 As to grounds (v) and (vii), it was submitted:-

“29. The panel does not dispute the proposition that a thirty-five year history of smoking may account for a loss of the sense of smell. Critically, the panel failed to address the observations by the AMS that Dr Wheatley’s report was supported by Dr Ratcliffe’s report that there was no history given by the worker of a loss of the sense of smell, let alone a history that a loss of sense of smell was related temporarily, or otherwise to the motor vehicle accident.
30. The panel is obliged to give reasons for its conclusions, see Campbelltown City Council v Vegan [2006] NSWCA 284. In this case, the ‘reasons’ advanced by the panel:
• Do not demonstrate why the fact of the worker’s coma detracts from the proposition advanced by the AMS that the loss of smell results from the worker’s smoking, and
• Do not address a matter critical to the determination by the AMS, namely the worker’s failure to report a loss.”

An issue as to whether a deduction should have been made in the assessment of the first defendant’s loss of temporomandibular dysfunction

41 As to ground (viii), the panel findings in [40] of its decision was a result of the panel misdirecting itself:-

“40. Given that the Respondent’s temporo mandibular joint disorder resolved after treatment 20 years ago, it is pellucid that this is not contributing to the Respondent’s current impairment and the AMS was therefore correct in making no deduction for this condition under s.323(1) of the 1998 act.”

42 In paragraphs [32] to [34] of the plaintiff’s submissions, it was contended:-

“32. Contrary to the proposition advanced by the panel, the treating prosthodontist, Dr Wheatley, had stated of his treatment for TMJ dysfunction seventeen years prior to the accident, that while that treatment had left his patient symptom free there was, in this patient, a likelihood in the right circumstances of the condition returning.
33. There was no evidence contrary to this. The only conclusion that can be drawn, therefore, is that the pre-accident state of the worker’s TMJ was that it remained vulnerable to a recurrence of the condition that had required treatment. This is an impairment, and ought to have been taken into account. To proceed, as the panel has, on the basis that there was no impairment is a misdirection, which is an error of law.
34. This is, of course, a matter that might have been the subject of an expanded submission, had the plaintiff been informed that, notwithstanding its request for a hearing, the matter would be determined adversely to the plaintiff and without any hearing.”

Defendant’s submissions

43 Mr B McManamey of counsel, who appeared on behalf of Ms Hrouda, relied upon both written submissions dated 7 December 2009 and oral submissions made on 15 December 2009.

44 Symbion, as plaintiff to the present proceedings, relied upon the affidavit in support of Michael Taylor, solicitor, sworn 15 July 2009 to which reference has been made.

45 Mr McManamey observed that Symbion lodged its appeal to the Appeal Panel in respect of the decision of the “Approved Medical Specialist” and in that application it was required to state the grounds under s.327(3)(a) to (d) of the WIM Act that were relied upon in the appeal.

46 Symbion indicated that it relied upon the ground that the assessment was made on the basis of incorrect criteria and that the Medical Assessment Certificate contained a demonstrable error.

47 In Part IV of the application, Symbion requested the opportunity to present oral submissions to the Appeal Panel. That part of the application contained a notation:-

“If yes, attach reasons why the appeal should not be determined by the Appeal Panel on the papers, and why the presentation of oral submissions is necessary. Failure to attach submissions may result in the application being rejected.”

48 Mr McManamey submitted that Symbion was clearly on notice that it was necessary to make submissions explaining why an assessment hearing was required. It was also on notice that the Appeal Panel could proceed to determine the appeal on the basis of the submissions made in the application without holding an assessment hearing.

49 Reference was made to paragraph [43] of the Workcover Medical Assessment Guidelines which, inter alia, referred to the fact that the Appeal Panel “… may decide the appeal on the papers without further involvement from the parties”.

50 The submission for Ms Hrouda, accordingly, was:-

“The Workcover Authority Guidelines make it abundantly clear that an Appellant should, at the time of applying to appeal, make all these submissions that it intends to make in support of the application. It is clear from the guidelines, that an Appeal Panel may decide to determine the matter without holding an assessment hearing. The only submission made by the plaintiff about an assessment hearing:-
‘The Appellant is of the view that the appeal cannot be determined on the papers, in view of the nature and grounds of the appeal, and in view of the requirement for an Arbitration of the issues which remain in dispute.’”

51 Reference was made to the Appeal Panel’s invitation on 6 May 2009 to address the issue raised concerning the partial loss of the sense of smell. In response, Symbion submitted further submissions dated 15 May 2009. Mr McManamey contended:-

“It is unusual that the Plaintiff did not choose to include the letter from the Workers Compensation Commission to include [sic] the letter from the Workers Compensation Commission or their further submissions in their evidence.”

52 It was further submitted that the plaintiff understood that, if the appeal was determined on the papers, it would not be given an opportunity to make further submissions.

53 Mr McManamey contended an Appeal Panel is not under an obligation to hold an assessment hearing. He relied in that respect on the decision in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 and in Smith v Liquip Services Pty Limited & Ors [2007] NSWSC 687 and Skillen v MKT Removals Pty Limited & Ors [2007] NSWSC 608.

54 Finally, on this point, issue was taken with Symbion’s reliance upon the decision in Dar (supra). It was observed in that case that the failure was one to take into consideration the fact that the parties had, in fact, requested an assessment hearing and had desired to make oral submissions was an error of law but that request had been overlooked. The present case, it was submitted, was quite different. The Appeal Panel had expressly considered the plaintiff’s request for an assessment hearing and rejected it on proper grounds.

Consideration

(1) The issue of the validity of Guideline 45

55 As the issue of the validity of Guideline 45 is fundamental to the authority of an Appeal Panel to conduct its proceedings as an “on the papers review”, I will deal with that question first before considering the procedural fairness issue and the remaining issues that have been raised in the summons.

(2) Hearing of an appeal against a medical assessment pursuant to s.328(1) of the WIM Act – a question of the validity of Guideline 45

56 The plaintiff contended that Guideline 45 issued by the Workcover was invalid in that it was contrary to the provisions of s.328 of the WIM Act.

57 The Workcover Medical Assessment Guidelines were issued by the Chief Executive Officer of the Workcover Authority of New South Wales (“Workcover”) under s.328, s.331 and s.376 of the WIM Act on 25 October 2006. Guideline 45 is contained within Chapter E of the Guidelines entitled “Reviewing or Appealing the Medical Assessment Certificate”. It is in the following terms:-

“45. An appeal panel consists of two approved medical specialists and one arbitrator. The appeal panel may adopt any of the following procedures in accordance with the needs of the individual case:
• preliminary review (in all matters),
• ‘on the papers’ review,
• further medical examination by an approved medical specialist on the appeal panel,
• assessment hearing
…”

58 Mr Perry relied upon submissions made for the appellant in Brockmann (supra) to the effect that the words of s.328(1) were unambiguous even though he acknowledged that the issue had been decided adversely to his argument in that case.

59 In support of the submission for Symbion, it was contended that Guideline 45 was inconsistent with the legislative intent behind and the wording of s.328(1) and, accordingly, the Guideline was invalid.

60 Mr Perry acknowledged that the point which his client raised in the present proceedings was the subject of and concluded by the decision in Brockmann (supra). In his oral submissions, he also acknowledged that I would be entitled and, in the circumstances of the case, likely to follow and apply the analysis and conclusions of Studdert J on the point in Brockmann.

61 In Brockmann (supra), Studdert J, in relation to ground (2) of the summons in those proceedings, considered an argument in relation to s.328 of the WIM Act and the provisions that then appeared in Practice Direction 8 which, inter alia, provided for an Appeal Panel to adopt a number of procedures including, what was described as, “on the Papers Review”. It was argued for the plaintiff that the Practice Direction had not been complied with because the report of a Dr Watters had not been provided to the plaintiff and no opportunity was afforded to him to address its content. In particular, the history as recorded in the report stated that the plaintiff had made no complaint that back pain had been a limiting factor for him.

62 Dr Watters conducted the further examination as required by the Panel and then the Panel proceeded to rely upon Dr Watters’ report without further notice to the deceased worker. The latter’s solicitors had not been served with a copy of the report and there was no hearing following Dr Watters’ assessment.

63 Studdert J referred to both the provisions of s.328 of the WIM Act and to the content of Practice Direction 8 which permitted an Appeal Panel to adopt procedures as therein referred including an “on the Papers Review”.

64 The complaint for the plaintiff, inter alia, was that the Practice Direction had not been complied with (because Dr Watters’ report had not been provided) and no opportunity had been afforded to him to address its content and, in particular, the history contained within it.

65 Attention was also given to the Medical Assessment Guidelines made pursuant to s.328, s.331 and s.376 of the WIM Act.

66 Studdert J at [57] stated that, in context, he did not consider that s.328(1) of the WIM Act compelled the conduct of an adversarial hearing. The Practice Direction and, more importantly, the Guidelines contemplated that the Appeal Panel may determine how the appeal was to proceed.

67 Studdert J at [66] referred to the principle that, as a general proposition, procedural fairness requires the decision-maker to disclose for comment material relevant to the injury of the person concerned where the source of that material is other than that individual. The requirement did not exist where the material came from the individual concerned himself. Further, to an extent that there was reliance upon the history given by the deceased, his Honour held there was no requirement that the significance attributed to the history by the Panel be conveyed to the deceased.

68 Studdert J noted:-

“57 In context, I do not consider that s 328(1) of the WIMWC Act compels the conduct of an adversarial hearing. An appeal is to be ‘heard’ by a three person panel, but the Practice Direction and, more importantly, the Guidelines contemplate that the Appeal Panel may determine how the Appeal is to proceed. Under para 43 of the Guidelines, the Appeal Panel is authorised either to set a date for an assessment hearing, or to decide the appeal on the papers, without further involvement from the parties. The Guidelines do not specifically mandate an assessment hearing if the Panel decides that there ought to be a medical examination.
58 Nor do I consider s 328(4) ought to be construed as making an assessment hearing obligatory. What the subsection does is to entitle an injured worker to be accompanied to an Appeal Panel hearing, if such a hearing is conducted.”

69 It is clear that his Honour reached his decision having regard to the particular provisions of the legislation and of the guidelines and the circumstances of the case as reviewed by him. In light thereof, his Honour was not persuaded that the deceased had been denied procedural fairness by the Appeal Panel. It was entitled to act as it did. Accordingly, Ground 2 of the summons failed.

70 As noted above, the submission in the present case was that the wording of s.328(1) and s.328(4) of the WIM Act strongly supported the proposition that a party who seeks an assessment hearing ought not be denied, or at very least, ought be notified that he or she will be denied a hearing, prior to the matter being determined against that party.

71 The Guidelines, as Studdert J observed, contemplate that an Appeal Panel may determine how an appeal is to proceed. Section 331 of the WIM Act states in unequivocal terms that appeals are subject to relevant provisions of the Workcover Guidelines relating to the procedure on appeals and s.328(2) states that “the Workcover Guidelines may provide for the procedure on an appeal”.

72 It is clear that the provisions of the WIM Act vest power in an Appeal Panel to determine the type or model of procedure to be applied. In certain cases (such as those involving disputed issues of fact on critical matters) an adversarial hearing may be indicated. The point remains, however, that s.328(1), read in context, does not compel the conclusion that all appeals to which that section applies must be the subject of an adversarial hearing.

73 It is well established that, in the case of a statutory power, the statutory framework will be of critical importance in determining what procedural fairness requires: Mobil Oil Australia Pty Limited v FCT (1963) 113 CLR 475, 503-504 per Kitto J. As the learned authors of Judicial Review of Administration Action by Aronson, Dyer & Groves, 4th ed (2009) observe:-

“Parliament will undoubtedly have identified certain objectives and priorities which will need to be kept in mind in determining what procedure is most appropriate. In some cases, Parliament may also have indicated that the procedure should be more or less adjudicative, or that it should be more or less adversarial or inquisitorial, or that greater or lesser degree of discretion should be allowed to the decision-maker on such matters …”

74 I, with respect, concur with the reasons for judgment of Studdert J in Brockmann (supra) which applies equally to the issue raised in the present case in relation to s.328(1) and Guideline 45. I, accordingly, conclude that Guideline 45 is valid and is not inconsistent with the provisions of s.328(1).

(3) The procedural fairness issue

75 Mr Perry emphasised in his oral submissions, as earlier noted, that, given that a certificate of a Panel is conclusive, a party who has sought a hearing, ought either be granted that opportunity or be informed, before the matter is determined, of the fact that the request for a hearing had been declined. Mr Perry sought to reinforce his submission by reference to obligations arising under s.328(1) of the WIM Act.

76 The specific issue raised by the Appeal Panel in its letter of 6 May 2009 was identified as one of causation. The nature and extent of the physical injuries sustained as a consequence of the accident on 3 September 2003 caused Mrs Hrouda to enter a coma for seven seeks and suffer amnesia. The question was whether the AMS had erred in attributing her partial loss of smell to her prior history of smoking rather than to the injuries sustained in the accident.

77 Mrs Hrouda’s representatives did not object to the issue being raised and considered by the Panel. It was clearly an issue which the Appeal Panel perceived to be of importance and an issue that needed to be addressed.

78 It is important to examine Symbion’s response. Firstly, it did not suggest that Symbion wished to adduce fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against within the terms of s.328(3) of the WIM Act. Secondly, Symbion (or those acting for it) did not, in terms, elect to address or deal with the causation point that had been raised by the Appeal Panel. Symbion’s response was in the nature of a request that a hearing date be allocated to the parties:-

“In order to allow them address [sic] an issue which did not form part of the appeal that had been raised by the Panel on its own motion.”

79 Accordingly, Symbion elected not to respond directly to the issue raised by the Panel in terms of the merits of the issue or otherwise. Further, it did not identify any reason or basis upon which it asserted a hearing was necessary for the purpose of addressing the issue. Thus, the comment made in paragraph [14] of the Statement of Reasons of the Appeal Panel:-

“… The Appellant neither indicated why it had not addressed fully this issue in its further written submissions nor what it was about this issue that necessitated the holding of an Assessment Hearing.”

80 In paragraph [17] of the Statement of Reasons, the further comment was made:-

“… In the absence of any cogent reason being indicated by the Appellant as to why it is necessary to hold an Assessment Hearing, the Panel is of the view that it would derive no benefit in terms of its consideration and determination of the Appeal by holding an Assessment Hearing.”

81 The Appeal Panel, accordingly, determined that it would not hold an Assessment Hearing.

82 The question then is whether or not the plaintiff has a legitimate grievance or complaint in contending, as it does, that it has been denied procedural fairness in the Appeal Panel failing to advise it before its final decision on 12 June 2009, that it refused its request for a hearing.

83 As to this question, it is apparent that the Panel identified in clear terms the nature of the causation issue that it considered to be relevant and that it had concluded the parties should be informed of and invited to make submissions on the point.

84 The Panel, by doing so, accordingly was effectively inviting any submissions the parties cared to make on the merits of the issue. The plaintiff chose, as I have stated, not to deal with the issue but to confine its response (for the second time) to a request for a hearing. This was done, as the Appeal Panel noted in its Statement of Reasons, without any reason or matter having been identified that would support the need for a hearing.

85 It is clear that the Appeal Panel provided the parties with notice of the issue that it was intending to deal with (the issue of causation) and that it provided an opportunity for Symbion (and the defendant) to address that issue (being a narrow one, namely, whether the loss of smell was linked to smoking or to traumatic injury).

86 It would have been open to the plaintiff to put forward detailed submissions if it wished and state any reason relied upon as to why a hearing would still be necessary. It chose not to follow that approach and no matter has been suggested that would have prevented it from doing so.

87 Had Symbion adopted the latter approach, it would have advanced its interests by identifying the matters that were relevant to causation and, at the same time, pursue its request for a hearing. In not deciding not to do so, the plaintiff ran the risk that, by simply seeking a hearing and making no submissions, it might lose the opportunity of drawing the Panel’s attention to matters that it believed should be considered.

88 The variable content of the principles of natural justice or procedural fairness has been noted in many authorities: see Kioa v West (1985) 159 CLR 550 at 612 per Brennan J. Equally, it has been emphasised that the requirements of natural justice depend on the circumstances of the case, the nature of the inquiry and the rules under which the Tribunal is acting as well as the subject matter: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118.

89 Accordingly, in the present case, the question raised of the alleged denial of procedural fairness is one about which the application of the relevant principles are very much influenced by the particular circumstances, including the relevant statutory context.

90 The point raised and considered in Dar (supra) was a different one to that arising in the present proceedings. As earlier noted, in Dar, Ground 4 of the summons raised a different issue. Bell J in that respect observed:-

“67. It may be accepted that it was open to the Appeal Panel to determine that the appeal would proceed without an assessment hearing. However, there is force to the complaint that the Appeal Panel’s discretion to decide whether to hold an assessment hearing was not properly exercised. It seems to me that it was not exercised at all because the Appeal Panel, wrongly, understood that each of the parties to this medical dispute wanted the appeal to be determined on the papers.”

91 Her Honour noted, in particular, that the Appeal Panel’s failure was one to take into account the fact that the plaintiff had expressed the wish to have an assessment hearing and made oral submissions. Her Honour concluded:-

“69. … In my opinion the Appeal Panel was bound to take into account the plaintiff’s wish that there be an assessment hearing and his desire to make oral submissions at it. The failure to take this consideration into account is an error of the kind described in Craig in the passage that I have set out (at [29] above).”

92 The issue raised by the plaintiff requires consideration of what the “hearing rule” required in the circumstances of the present case. In that respect:-

(1) In determining the fairness or otherwise of procedures, it has been held that “[F]airness is not an abstract concept. It is essentially practical … the concern of the law is to avoid practical injustice” : Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 21 CLR 1 at 13 to 14 per Gleeson CJ.

(2) Some broad considerations that determine the application of the hearing rule include the consequences of the decision for individual interests, the nature of the issues to be considered and the need for urgent action: Judicial Review of Administrative Action (supra) at [8.35].

(3) Regardless of how “fairness” is assessed, the onus of establishing that the standard has not been met will lie upon the party who seeks to prove breach of natural justice: Judicial Review of Administrative Action (supra) at [8.20]. It has been noted that whatever standard is adopted, a person should have a “reasonable opportunity” of presenting his case: per Tucker LJ in Russell (supra) cited by Brennan J in Kioa (supra). The grant of relief for a denial of procedural fairness is discretionary. Relief may be refused if the Court is satisfied that the alleged breach did not deprive the person of the possibility of a different or more favourable outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Revue Tribunal; ex parte Ala (2000) 204 CLR 82 at 88 to 89 (Gleeson CJ).

93 It is clear from the statutory scheme that there is no right to an oral hearing before the Appeal Panel. Accordingly, it is of some importance to evaluate how and why an oral hearing in the circumstances of the present case would have advanced the plaintiff’s interests. That is a matter addressed below. It is sufficient here to note that no submission was made that the issue of causation raised by the Appeal Panel required resolution of conflicting accounts as to facts or the assessment of credibility issues.

94 I do not consider that it can be said that the Appeal Panel denied procedural fairness to the plaintiff. In circumstances in which it drew the parties’ attention to the particular matter of causation about which it had a concern and invited them to address the issue, Symbion, as earlier discussed, effectively elected to take a course of not responding to the opportunity provided. The risk that its request for a hearing would be unsuccessful was relatively high, given the fact that its earlier general request made on 16 February 2009 to be heard (again without identifying stated grounds and reasons) had been unsuccessful.

95 At the hearing of the present proceedings, Mr Perry was asked what it was that a hearing before the Panel would have achieved that could not have been achieved by written submissions. Mr Perry responded that (t.11):-

“… at an oral hearing counsel is entitled or an advocate is entitled or a party is entitled to seek guidance from the Commission as to or from the tribunal as to what it is that is exciting the tribunal's attention, the manner in which it is proceeding or is minded to move, to address the basis of that. If it is based on a misapprehension, to point that out. All of the advantages are, sometimes referred to as a Socratic dialogue, possibly the dialogue that I am having with your Honour at the moment, all of that is denied.”

96 Mr Perry continued that the audi alteram partem rule “contemplates that a correct outcome is more likely to be achieved when parties are heard”. He also relied upon what he termed “the opportunity to advance persuasive oral submissions” (t.12). He later submitted “… a party can be more persuasive if that party speaks to his or her submissions …” (t.13).

97 In the particular circumstances of the present case, I do not consider that the plaintiff has established that it was denied the opportunity of addressing the cause or causes of the defendant’s partial loss of the sense of smell. No particular matter has been raised (including those referred to in the preceding paragraph) which would indicate that there was a reasonable need for a “hearing” on the discrete issue raised by the Panel.

98 Even if, contrary to the conclusion I have expressed, a breach of the “hearing rule” could be said to have existed in the Panel not writing back to advise the plaintiff before determining the matter that its request for a hearing was refused, as a matter of discretion, I am of the opinion that relief should be refused. The fact that Symbion chose to refrain from making any written submissions when given the opportunity to do so, that it failed to advance any reason or basis for its request for a hearing and that it could not identify in the present proceedings any particular matter that would require a hearing all go to support the conclusion that, even if a breach of procedural fairness were made out, the discretion should be exercised against the grant of relief. There is no reason to conclude that the outcome of the proceedings before the Panel would have been any different if the plaintiff had been permitted a “hearing”.

(4) Other grounds

Ground (viii)

99 The relevant finding made and which is challenged in this ground is to be found in paragraph [40] of the Panel’s decision:-

“40. Given that the Respondent’s temporo mandibular joint disorder resolved after treatment 20 years ago, it is pellucid that this is not contributing to the Respondent’s current impairment and the AMS was, therefore, correct in making no deduction for this conclusion under s.323(1) of the 1998 Act.”

100 In the submissions for Symbion, it was contended that, contrary to the proposition advanced by the Panel (Plaintiff’s Submissions, paragraph [32]):-

“… the treating prosthodontist, Dr Wheatley, had stated of his treatment for TMG dysfunction 17 years prior to the accident, that while that treatment had left his patient symptom-free, there was, in his patient, a likelihood in the right circumstances of the condition returning.”

101 Mr Perry submitted there was no evidence contrary to this latter statement and that the only conclusion that could be drawn, therefore, was that the pre-accident state of the worker’s TMG was that it remained vulnerable to a recurrence of the condition that had required treatment. It was said this impairment was one that ought to have been taken into account and that to have proceeded as the Panel did (on the basis that there was no pre-existing impairment) was a misdirection which is an error of law.

102 In reply, it was submitted for the first defendant that the matter raised under this ground is effectively a submission that the Appeal Panel should have reached a different conclusion of fact. This is clearly so.

103 The question as to whether or not some pre-existing vulnerability to a recurrence of the condition (even though there had been no symptoms over 17 years) contributed in any way to TMG dysfunction, was entirely a conclusion of fact for the Panel’s evaluation based on expert evidence.

104 Mr McManamey referred to the observations of Kirby P in Kooragang Cement Pty Limited v Bates (1994) 10 NSWCCR 796, namely, that “the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury”.

105 The fact, as was contended by Mr Perry, that there was a “likelihood in the right circumstances of the condition recurring” (as expressed by Dr Wheatley) did not lead to the conclusion that the particular circumstances in which the first defendant suffered extremely serious head injuries, were the “right circumstances” that Dr Wheatley had in mind. It is clear that the Panel formed the view, on the evidence before it, that the condition was wholly related to the motor vehicle in question having regard, in particular, to the severity of the head injury sustained. That was entirely a question of fact to be determined by medical experts on the evidence in the case. It does not, in my opinion, raise a question of law. I, accordingly, do not consider that Ground (viii) is a valid ground.

Grounds (b) and (vii)

106 These grounds related to the contention that the Appeal Panel had failed to give reasons.

107 It was submitted in response to the plaintiff’s case on these grounds that the Appeal Panel had clearly disclosed the basis for its conclusion and that it was unnecessary to set out the entirety of the evidence bearing on this issue. The submission was:-

“… The Panel clearly set out its reasons for accepting a causal connection between the accident and the loss of sense of smell at paragraph 49 of its decision. The Panel clearly stated that it thought the severity of the trauma which left her in a coma and amnesic for a period of 7 weeks and hospitalised for 11 months was more likely to be the cause of the First Defendant’s loss of smell. The Panel’s reasons are clear. The Plaintiff’s complaint in this respect is merely an attempt to cavil with a finding of fact.”

108 It was also submitted on behalf of the first defendant that, whilst it was accepted that the Appeal Panel is obliged to give reasons, the obligation to give reasons for a decision does not require lengthy or elaborate reasons. Reliance was placed upon observations of the Court of Appeal in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247.

109 I am clearly of the opinion that the Panel did, in its decision, identify the basis upon which it reached its conclusion on the causation issue. It was, in the Panel’s assessment, plainly the nature and severity of the injuries (in particular, head injuries) and that put the first defendant in a coma for seven weeks and rendered her amnesic that accounted for the partial loss of sense of smell.

110 I accept the submissions for the first defendant and, accordingly, do not consider that there is any validity in these grounds to the appeal.

Orders

111 I make the following orders:-

(1) The summons is dismissed.

(2) Subject to (3), the plaintiff is to pay the first defendant’s costs.

(3) If the plaintiff wishes to argue that costs should not follow the event, liberty to apply within 10 days of judgment.

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