UGL Rail Services Pty Ltd v Attard

[2016] NSWSC 911

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard [2016] NSWSC 911

Hearing dates:

3 March 2016

Date of orders:

01 July 2016

Decision date:

01 July 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) An order in the nature of certiorari quashing the decision of the Second Defendant of 13 April 2015 referring the matter to an Appeal Panel.

 

(2) An order in the nature of certiorari quashing the Certificate of the Third Defendant dated 24 June 2015.

 

(3) An order in the nature of mandamus remitting the matter to the Second Defendant for the purpose of determining according to law whether, on the face of the application filed by the First Defendant and any submissions made in relation to it, whether any ground of appeal specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) has been made out and, if so, for the purpose of appointing a different panel to determine the First Defendant’s Application to Appeal against the decision of the Approved Medical Specialist.

 

(4) The First Defendant should pay the costs of the Plaintiff.

 (5) The First Defendant should have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise so entitled.

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error - Workplace Injury Management and Workers Compensation Act 1998 – injured worker – assessment of whole person impairment – Registrar refers medical dispute to appeal panel - whether demonstrable error in the medical assessment certificate – error asserted to be the percentage whole person impairment assessed by medical assessor – no demonstrable error established - appeal panel identifies other errors in certificate of assessor – whether jurisdictional error in so doing - decisions of Registrar and appeal panel quashed

Legislation Cited:

Suitors Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

George v Wombo Lane Pty Limited [2010] NSWSC 660
Haroun v Rail Corporation NSW [2008] NSWSC 160
Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939
New South Wales Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792
Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366
Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55

Category:

Principal judgment

Parties:

The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) (Plaintiff)
Daniel Attard (First Defendant)
The Registrar, Workers Compensation Commission of NSW (Second Defendant)
John Wynyard, Dr Catherine Drummond, Dr Tommassino Mastroianni constituting the Medical Appeal Panel (Third Defendant)

Representation:

Counsel:
M Allars SC (Plaintiff)
R Stanton (First Defendant)
Submitting appearances (Second & Third Defendants)

  Solicitors:
Cantle Carmichael Legal (Plaintiff)
Law Partners Compensation Lawyers (First Defendant)
Crown Solicitors Office (Second & Third Defendants)

File Number(s):

2015/252667

Judgment

1. This is an application for administrative review of two decisions made in the Workers Compensation Commission of NSW. The first decision is that of a delegate (the Second Defendant) on 13 April 2015 who was satisfied that one of the grounds for appeal specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in the First Defendant’s application to appeal had been made out. The second decision was that of the Appeal Panel (the Third Defendant) in its Certificate and Statement of Reasons dated 24 June 2015 when it conducted the reassessment of the First Defendant.

Background

2. The First Defendant was employed as a boilermaker and welder. He developed hand dermatitis around 2000 after being exposed to a solvent known as Gunwash which was used to clean his paint equipment. The dermatitis became progressively worse and he resigned from that employment in 2001.

3. He subsequently worked with three employers and for a period of time conducted his own business.

4. The dermatitis never fully settled and the first Defendant suffered flare-ups which often became infected.

5. An arbitrator determined that the date of injury was 19 March 2012.

6. The First Defendant was examined by Dr Lobel on 30 November 2011. In a report dated 6 December 2011 Dr Lobel assessed the First Defendant as having 16% whole person impairment from the injury.

7. The First Defendant was examined by Dr Freeman who on 3 August 2012 assessed him as having 17% whole person impairment.

8. On 4 September 2014 the arbitrator determined that the Plaintiff was liable to compensate the First Defendant. She remitted the matter to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment (WPI) resulting from the condition of chronic dermatitis. The First Defendant was assessed by Dr Sippe.

9. On 15 December 2014 Dr Sippe provided his Medical Assessment Certificate and Reasons (MAC) in which he certified that the First Defendant’s whole person impairment was 13%.

10. For the First Defendant to recover “work injury damages” he must be assessed at being 15% whole person impairment under s 151H of the Workers Compensation Act 1987 (NSW).

11. On 13 January 2015 the First Defendant filed an application to appeal against the decision of the AMS. The ground of appeal specified was that the MAC contained a demonstrable error.

12. The error was identified in paragraph 25 of the First Defendant’s submissions to the Registrar (the Second Defendant’s delegate) in these terms:

The appellant submits that the medical assessment certificate contains a demonstrable error on the basis that the symptoms the appellant worker suffers, the frequency of the signs and symptoms, the impact of the skin disorder and the complexity of treatment required, would be more in line with at least a midway to high level of class 2 impairment in accordance with the opinions of Dr Lobel (page 13 – 19 of AALD dated 25/3/14) and Dr Freeman (page 7 – 13 of reply).

13. On 13 April 2015 the Registrar determined that a ground of appeal specified in s 327(3)(d) was made out, that is that Dr Sippe’s MAC contained a demonstrable error. The Registrar nominated the members of the Appeal Panel and referred the appeal to the Panel.

14. The Appeal Panel issued its Certificate and reasons on 24 June 2015. In effect it found a demonstrable error in relation to what the AMS said about the First Defendant’s employment and an error in not giving adequate reasons for explaining why the AMS differed from what was described as the “unanimous opinion” of Dr Lobel and Dr Freeman.

15. The Summons was filed in this Court on 28 August 2015. Whilst that was within time for an appeal in respect of the Panel’s decision it was out of time for the relief sought against the delegate in permitting the appeal to go forward. Leave is required under Pt 59.10 (2) of the Uniform Civil Procedure Rules 2005 (NSW).

The legislation

16. The following are the relevant parts of the Workplace Injury Management and Workers Compensation Act:

327 Appeal against medical assessment

(1)   A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2)   A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

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

(a)   deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b)   availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

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

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

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

(5)   If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

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

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

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

(8) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.

Note. Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.

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 but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can 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 by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.

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

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

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

Should leave be granted?

17. The First Defendant submitted that no explanation was provided by the Plaintiff for why there was a delay in filing the summons in respect of the Registrar’s decision. The First Defendant submitted that it would be futile to seek to quash the Registrar’s decision referring the matter to the Appeal Panel because the Panel has already carried out its statutory function. The Plaintiff is in the position of being able to challenge the Panel’s decision in relation to the principal argument put forward by the Plaintiff that the Appeal Panel erred because it was “cavilling” with the clinical judgment of the AMS. The First Defendant submitted that it was not necessary to obtain leave to appeal against the Registrar’s decision to do that.

18. The Plaintiff submitted that it had provided an explanation in the affidavit of Reginald Malcolm Whare sworn 13 November 2015. In that affidavit Mr Whare said that he thought that, although the First Defendant had been permitted to pass through the “gateway” of the appeal process, the First Defendant would not necessarily succeed before the Appeal Panel.

19. The Plaintiff submitted that if it was successful in overturning the Panel’s decision, the position would remain that the First Defendant had been allowed through the gateway on the basis of the same appeal ground having been established.

Determination

20. Part 59.10(3) UCPR provides:

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

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

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

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

(d)   any relevant public interest.

21. In my opinion leave should be given to the Plaintiff to bring the proceedings concerning the Registrar’s decision out of time. A determination of whether demonstrable error is demonstrated in relation to the Appeal Panel’s decision is closely associated with a consideration of the same question in relation to the Registrar’s decision. The two matters are not necessarily co-extensive but it would be artificial to consider the one without the other.

22. The First Defendant does not point to any prejudice that he or any other person will suffer from the grant of leave particularly because the Summons was only a little over one month out of time in relation to the Registrar’s decision. Whilst it is the case that the Plaintiff became aware of the Registrar’s decision within quite sufficient time to have permitted it to appeal against that decision it was not unjustified for it to await the Appeal Panel’s decision before seeking to appeal. If the Appeal Panel’s decision was that the appeal should not be upheld unnecessary costs would have been expended by unnecessary proceedings in this Court. Moreover, if the Summons had been filed within three months of the Registrar’s decision and the Appeal Panel had upheld the appeal (as it did) there is no doubt that the Plaintiff would have sought leave to amend the Summons to appeal against the Appeal Panel’s decision. In such a case the position would be exactly as it is now apart from the need to seek the leave.

Dr Sippe’s Certificate and Reasons

23. In his MAC the AMS set out the First Defendant’s employment history as follows:

Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Mr Attard developed hand dermatitis in 2000 when exposed to spray gun wash, detergents and chemicals. The chemicals destroyed the latex plastic gloves that he was wearing. Some two to three days later he developed blisters over the hands. The areas then became crusted and settled slowly. He was transferred to the welding shop but the areas continued to be aggravated and he still continued to suffer from hand dermatitis. Mr Attard was treated by dermatologist, Dr Cooper. Allergy testing being performed but no positive reactions were obtained.

In 2000 he was employed by Gutter Shield in sales and had minimal problem.

In 2009 Mr Attard conducted his own business in Home Improvement Materials.

In 2011 he was employed by All State Trailer Services. From August 2011 to November 2011 he worked at Power Projects Pty Ltd.

In 2012 until February of that year he was employed at Performance Engineering Pty Ltd.

He was self-employed working in a variety of locations including Gympie. His dermatitis, however, never fully settled. … He states that he has never been free of his problems since 2000, although he still works in steel fabrication.

…

Work history including previous work history is relevant: following the development of his hand dermatitis in 2000, Mr Attard was placed in a variety of positions in an attempt to remove him from his environment of contact with chemicals. He was unable to resolve the areas fully with boilermaking and was eventually put into administration/sales position with Gutter Shield. During this time he had less (sic) problems. Her (sic) was able to conduct his own business for several years but more recently had more severe flares of his dermatitis while working as a boilermaker finding his industrial gloves irritating his hands. He is currently on workers compensation following the recent industrial accident.

24. Elsewhere in the MAC the AMS noted that the First Defendant had been able to work intermittently as a boiler.

25. The AMS concluded:

a.   my opinion and assessment of whole person impairment

The hand dermatitis that Mr Attard developed commenced in 2000 after contact with chemicals from clearing his spray gun. This was the initiating factor for his dermatitis. He, apparently, had no previous skin problems. Since this time he continues to have ongoing skin problems with his hands affected with severe dermatitis, primarily affecting the fingers, being more pronounced on the right. This would restrict him in his work activities and his ability to use his hands freely.

Social outings would also be restricted. It is interesting that he is able to continue to work despite his dermatitis. His dermatitis could be significantly improved by more intense specialist management. From past records Mr Attard's hands have returned to normal so the current situation is not always present. He has been able to use his hands to work in a normal fashion as evidenced by his recent work injury.

b.   explanation of calculations

Mr Attard's skin problems are limited to his hands. From AMA 5, Table 8.2, Mr Attard qualifies for Class 2, 10% - 24% Impairment of the Whole Person. The pattern of his dermatitis appears to be fairly constant and as such I feel can be estimated. He has limitations in some activities of daily living but does require intermittent to constant treatment. He has some restriction on the use of his hands but is able to function at work, recently working as a boilermaker cutting steel, when he suffered his industrial accident.

In Class 2,1 estimate his impairment at 13%.

c.   brief comments

My comments differ slightly from that expressed by Dr Freeman. While he does have significant dermatitis, he has been able to work recently so that while he has restrictions, the restrictions are not at the level that prevent him from using his hands or engaging in work activities. (emphasis added)

Application to appeal

26. In the submissions when the application to appeal was lodged, the First Defendant noted the criteria for class 2 impairment (which he was assessed as having) and also the criteria for the higher class 3 impairment. The criteria for the class 2 impairment was said to be that,

The injured worker must have skin disorder signs or symptoms present or intermittently present and limited performance of some activities of daily living and may require intermittent to constant treatment.

The First Defendant submitted at that time he suffered from limitations in many activities of daily living and he listed those restrictions and limitations.

27. He then went on to refer to findings of Dr Freeman and Dr Lobel as follows:

21.   In her report dated 3 August 2012, Dr Freeman, Independent Medico-legal Specialist and Occupational Dermatologist, noted the Appellant worker's limitation to his activities of daily living as being "handicapped in any household duties or food preparation, in particular he cannot carry out gardening, housecleaning or dish washing. He also states that he scratches at night and this interferes with his sleep". Based on these limitations, Dr Freeman was of the medical opinion that the Appellant worker's level of impairment would fall "roughly halfway in the range for Class 2" (page 7-13 of

Reply).

22.   Similarly, Dr Lobel in his report dated 6 December 2011, has noted the Appellant worker's unsuccessful attempts to return to his trade of a boiler maker "because of flare [ups] of the dermatitis'' (page 15 of AALD dated 25/3/14). Dr Lobel goes on to state that the Appellant worker "has signs and symptoms of his skin disorder (hand dermatitis) continuously present requiring constant treatment and there is limited performance of some of the activities of daily living as defined in table 1.2 of the Guides (self care/personal hygiene, non specialised hand activities such as grasping and lifting, restful nocturnal sleep pattern) ...in my opinion, Mr Attard's impairment falls at roughly the mid-point of the range " (page 18 of AALD dated 25/3/14).

28. Finally, under the heading “Orders Sought” the First Defendant relevantly said this:

25.   The Appellant submits that the Medical Assessment Certificate contains a demonstrable error on the basis that the symptoms the Appellant worker suffers, the frequency of the signs and symptoms, the impact of the skin disorder and the complexity of treatment required, would be more in line with at least a mid-way to high level of Class 2 impairment in accordance with the opinions of Dr Lobel (page 13-19 of AALD dated 25/3/14) and Dr Freeman (page 7-13 of Reply).

The Appeal Panel’s Certificate

29. In the Panel’s Certificate it noted that the First Defendant requested to be re-examined by an AMS who was a member of the Appeal Panel. However, the Panel determined that a re-examination was not necessary.

30. The Panel’s conclusions are relevantly these:

29.   The AMS also noted at [10b]:-

"[The appellant] has some restriction on the use of his hands but is able to function at work, recently working as a boilermaker cutting steel, when he suffered his industrial accident."

30.   The accident referred to involved the third right finger and central forehead when a grinder blade ruptured. The AMS said at [10c]:-

"My comments differ slightly from that expressed by Dr Freeman. While he does have significant dermatitis, he has been able to work recently so that while he has restrictions, the restrictions are not at the level that prevent him from using his hands or engaging in work activities."

31.   It would seem that the AMS has reduced his assessment from that of Dr Freeman because the appellant was able to work 'recently'.

32.   That is a mistake of fact, as the appellant has been in constant employment, as indicated earlier, since he first contracted this condition. In his statement of 13 May 2012 the appellant went into some more detail as to that subsequent employment after 2001. He worked until 2009 for Gutter Shield Systems Australia, which did not entail any exposure to chemicals.

33.   In 2009 the appellant opened his own business, Danga Innovations, selling home improvement products. He did not mention what effect that work had on his condition, but his failure to do so would indicate to us that again that employment was away from exposure to chemicals. However, in April 2011 to June 2011 the appellant back to work (sic) as a boilermaker and welder. He again worked from August 2011 to November 2011 as a boilermaker and from February 2012 to March 2012 again as a boilermaker and welder.

34.   In a supplementary statement dated 17 June 2013 the appellant explained why he returned to working as a boilermaker. He said:-

"46.   As a result of selling our businesses our personal savings were dwindling. I had to return to working with my career choice as a boilermaker. I enjoy doing the work. The management and sales area was winding down and my wife was closing down her business. I had a need for income so I had to return to boilermaking work. It paid good money and I had no choice.

47.   At the present time I am able to work as a boilermaker or carpenter or a gardener but not without pain. I get blisters on my hands, I can't do any jobs. Working in sales is OK but it is not a guaranteed source of income.

48.   Currently today my hands have open wounds, blisters, cracks and deep crevices on both my hands. I have had this ever since I was exposed to the chemicals at UCL."

35.   This history was consistent with the history taken by the AMS and it does not appear that there has been any subsequent employment. The AMS said (at the end of the first bullet point):-

".... [the appellant] still works in steel fabrication."

36.   The documentary evidence before us does not indicate that the appellant has worked since that 2012 employment. Dr Lobel advised after reading the appellant's statement that the subsequent employment therein referred to would not have aggravated the dermatitis, but that the appellant was made susceptible by repeated contact with the solvent known as gun wash. He did not alter his opinion as to WPI expressed in his report of 6 March 2012.

37.   Similarly, Dr Freeman took a consistent history on 3 August 2012. She said:-

"He states that after he developed the hand dermatitis in 1990 [sic -2000] whenever [the appellant] tried to return to welding the general heat of welding caused his hand dermatitis to flare badly."

38.   She noted that when working in sales during the period above described between 2000 and 2010 that whilst he suffered from hand dermatitis, the appellant's condition was not as severe. Dr Freeman then said:-

"In 2010 to 2011 [the appellant] returned to the trade of boilermaking but his hands immediately worsened.

He worked in seven different boilermaking jobs in the last year. Each time his hands would flare and he would leave the job and try another job.

He said that the heat from the welding would flare his hands no matter what kind of gloves he wore."

39.   It can be seen that there is no difference in the work history between that given by Dr Freeman and that given to the AMS. It may be that the appellant advised the AMS during the interview that he had been doing more boilermaking work of the same nature that he had been doing since 2010. However, the AMS fell into error when he distinguished his assessment from that of Dr Freeman by alluding to the appellant's working 'recently'. As a matter of fact the appellant had been working on and off at boilermaking since 2010 and if he had been working recently, that reflected the pattern described by both the appellant and Dr Freeman.

40.   We are not satisfied that the AMS exposed adequate grounds in his reasoning for differing from the near unanimous view of the medico-legal Specialists on both sides of the record. Whilst the respondent relied upon various aspects of Dr Freeman's report, it must be remembered that, notwithstanding that reliance, Dr Freeman concluded that the appropriate assessment was of 17 percent WPI. Further, although the respondent referred to the comments by the AMS at [10c] referred to above, it did not develop any submission as to in what respect the opinion of the AMS was different to that of Dr Freeman.

41.    The AMS summarised:-

"Mr David Attard had a long history of chronic hand dermatitis which commenced in 2000. He apparently had no previous skin problems. He continues to suffer from hand dermatitis with constant flares with never any constant or significant remissions, according to him. Various workplaces have not noted him suffering from hand dermatitis and on observations he, at times, have (sic) been able to use his hands in a normal fashion. Both hands have been affected, particularly the dorsum of the hands. He presents with a similar pattern at this interview and has provided photographs of when his hands have been severely affected, showing very significant dermatitis over the dorsum of both hands. He has, however, been able to work intermittently as a boilermaker."

42.   The reference in that finding to 'various workplaces' we find to represent a somewhat selected view of the appellant's subsequent work history. The AMS overlooked the fact that from 2000 to 2009 the appellant was not exposed to chemicals but that his business was not successful. Whilst the AMS acknowledged that the appellant had been able to work intermittently as a boilermaker, he failed to acknowledge that the appellant had been doing so since 2011.

43.   Whilst there is no necessity for an AMS to give reasons for differing from other opinions, where there is unanimity (or as in this case, near unanimity) as to a discretionary level of WPI, an AMS exposes himself to the criticism that he has not given adequate reasons if he fails to explain why he differs from that unanimous opinion. The AMS failed to address Dr Lobel's opinion, and in making an error of fact, as we have found, did not give a satisfactory reason for differing from Dr Freeman.

44.   We are satisfied that a more appropriate assessment would be in the middle of the range as found by Dr Lobel. Whilst not on all fours, the appellant’s situation is analogous to the example 8.8 given at page 181 of AMA5 where a dental assistant progressively contracted chronic hand dermatitis resulting in red swollen crusted fissured palms, fingers and wrists, where limitations existed in daily living and where intermittent to constant treatment was necessary. The authors of the Guides thought in that situation a 15 percent assessment was appropriate. We are of the view that a 16 percent assessment is justified on the material before us.

The present appeal

31. Because of a challenge to the breadth of what was argued at the hearing it is necessary to set out the grounds of appeal. The grounds are these:

1. The Second Defendant's Delegate was in error when he determined on 13 April 2014 that on the face of the first Defendant's Appeal against Medical Assessment and his submissions at least one of the grounds for appeal specified in s 327(3) of the 1998 Act had been made out.

2.   The Delegate of the Second Defendant should have determined that on the face of the First Defendant's Appeal against Medical Assessment and his submissions none of the grounds for appeal set forth in s 327 (3) of the 1998 Act had been made out, in particular that the First Defendant had not made out that the Medical Assessment Certificate of Dr Sippe of 15 December 2014 contained a demonstrable error.

3.   The Second Defendant was in error in permitting the First Defendant to cavil at matters of the clinical judgment formed by Dr Sippe.

4.   The Third Defendant was in error when it determined on 24 June 2015 that there was demonstrable error on the face of Dr Sippe’s certificate first in that he failed to expose adequate grounds in his reasons for differing from the near unanimous view of the medico-legal specialists on both sides of the record, second in that the appropriate assessment was in the middle of the range as found by Dr Lobel, third in that the medical assessment certificate of Dr Sippe should be revoked and a new medical assessment certificate should be issued to the effect that the First Defendant suffered 16% whole person impairment in respect of the matters referred for assessment.

5.   The Third Defendant was in error in permitting the First Defendant to cavil at matters of clinical judgment formed by Dr Sippe.

32. The Plaintiff identified two matters referred to in the reasons of the Appeal Panel that were said to amount to demonstrable errors on the part of Dr Sippe. The first error was to be found in the discussion in paragraphs 24 – 39. The error was said by the Panel to be that the AMS Dr Sippe wrongly found that the First Defendant was able to work “recently” and that in that regard the position differed from what Dr Freeman had ascertained about the First Defendant’s work history. The error is said to have occurred in paragraph (c) of the AMS’s MAC. Paragraph (c) was set out in the Appeal Panel’s reasons at paragraph 30. Paragraph 32 then identified, in the Appeal Panel’s opinion, that the mistake of fact was finding that the First Defendant had not been in constant employment.

33. The second error asserted by the Appeal Panel was to be found in paragraphs 40 – 43 of its reasons. The error on the AMS’s part was said to be a failure to give reasons for differing from other opinions where there was unanimity or near unanimity as to the discretionary level of whole person impairment.

34. The Application to appeal was put to the Registrar on the basis of the MAC containing a demonstrable error. As noted, that was said to be (paragraph 25 of the First Defendant’s submissions to the Registrar) that the symptoms would be more in line with at least a midway to high level of Class 2 impairment in accordance with the opinions of Dr Lobel and Dr Freeman.

35. The Plaintiff submitted that neither of the errors found by the Appeal Panel was the demonstrable error relied on by the First Defendant nor found by the Registrar.

36. The First Defendant submitted that the Registrar had formed the opinion that a demonstrable error existed, and the Appeal Panel then went on to identify what that error was. The First Defendant submitted that the Plaintiff’s submissions failed to consider what the Appeal Panel thought the error on the face of the MAC was. The error identified was the AMS’s failure to appreciate that the First Defendant had been in constant employment as opposed to working only “recently”.

37. The First Defendant submitted that the Appeal Panel was not permitting the First Defendant to cavil at matters of clinical judgment formed by the MAS. Rather it was performing its statutory function. The First Defendant suggested that the reference to cavilling with matters of clinical judgment, derived from what was said by Mason P in Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366 at [59], was directed to something different, namely, the decisions of an AMS as to what symptoms the AMS thinks are relevant to record in his or her certificate.

38. The First Defendant submitted that there was an error of logic and analysis in the approach of the AMS to Dr Freeman’s report because Dr Freeman and the AMS had a similar history and yet the AMS said he was coming to a different clinical view because the First Defendant had been able to work recently. He submitted that an error in logic or analysis could be a demonstrable error, and made reference to Haroun v Rail Corporation NSW [2008] NSWSC 160.

39. The First Defendant submitted that there had to be flexibility in the consideration by an Appeal Panel of the grounds of appeal advanced by a worker. There was a sufficient connection between the error identified and what the Appeal Panel considered.

Did the Registrar err?

40. The first issue is whether the Registrar’s decision that the error described in paragraph 25 was a demonstrable error was correct. In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] Hoeben J (as his Honour then was) said:

… “demonstrable error” is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment.

41. That statement was approved by Mason P (McColl and Bell JJA agreeing) in Pitsonis at [49]. Mason P also said:

[49] I am therefore driven to conclude that s327(3)(d) uses “contained” in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3)(a) or (b) being adduced in the appeal.

42. In my opinion, an error suggesting that symptoms should be characterised in a particular way, whether being regarded as falling within a particular specified Class or assessed at some particular percentage or range of percentages, does not without more amount to a demonstrable error. What is involved in those type of assessments amounts to clinical judgment that ought not to be cavilled with. It is significant that the First Defendant did not assert his injuries should have been placed in a different Class, only that a different percentage should have been accorded to them within the Class he accepted they were correctly placed.

43. The First Defendant accepted that it is not part of the Registrar’s functions to allow an appeal to proceed simply because the Registrar thinks the AMS ought to have found a higher percentage. The First Defendant said that would clearly be wrong. I agree. Although Mason P, when speaking of cavilling at matters of clinical judgement, was directing attention to failures to record or record correctly things told to the AMS, that does not detract from the significance of the statement that the task of the Appeal Panel is not to cavil with matters of clinical judgment. That must be partly, at least, because the Appeal Panel is not to conduct a merits review. The assessment of percentage WPI is undoubtedly a matter of clinical judgment.

44. There was no basis for the decision of the Registrar that the Medical Assessment Certificate contained a demonstrable error. The matter should not have been referred to an appeal panel. The Registrar acted beyond jurisdiction.

Was the Appeal Panel in error?

45. The role of the Appeal Panel was to deal with the demonstrable error identified as having provided the basis for the appeal: New South Wales Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [52]; Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 at [38]-[39]. The Appeal Panel made reference to the former of those decisions. It then said this:

19.   Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of the appeal. …

20. In this matter the Registrar has determined that she is satisfied that at least one of the grounds of appeal under section 327(3) is made out. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by the appellant.

46. However, when the Appeal Panel came to consider the matter it did not confine itself to the ground of appeal in respect of which leave had been given to appeal. It first purported to find demonstrable error in relation to the First Defendant’s work history as found by the AMS. This is contained in its discussion in paragraphs 29 to 39 and, to some extent, in paragraphs 41 and 42. The Appeal Panel went on to criticise the AMS because it concluded that the AMS had drawn different conclusions about the First Defendant’s work history from Dr Freeman and said that there was no difference in the work history given to Dr Freeman and the AMS.

47. Secondly, the Appeal Panel found that the AMS had not provided adequate reasons for differing from what it described as the “near unanimous view” of the medico-legal specialists. That view appears to have been the assessment by Dr Lobel of 16% WPI and by Dr Freeman of 17%.

48. Neither of those asserted demonstrable errors was the error claimed by the First Defendant nor the error which in the Registrar’s determination justified the appeal proceeding. The First Defendant submitted that this matter was not covered by the grounds of appeal in the Amended Summons. I do not agree. Ground 4 is couched in wide terms. What is said in ground 4 to be the first of the Appeal Panel’s errors is that it was in error in determining that there was demonstrable error in the AMS in failing to provide adequate reasons. It seems to me that such an error on the Appeal Panel’s part may be demonstrated by showing that this was not the demonstrable error identified by the First Defendant in his application and agreed by the Registrar in referring the matter to the Appeal Panel.

46. It may be accepted that the error found by the Registrar was not a demonstrable error, and might be thought to have pointed the Appeal Panel towards a merits review of the whole matter when no such review was permitted by the terms of s 328(2) of the Act. Nevertheless, in purporting to find those two errors the Appeal Panel acted beyond jurisdiction. It was confined to the error identified in paragraph 25 of the First Defendant’s submissions to the Registrar, if that error was properly a demonstrable error.

47. It is, however, appropriate to examine the MAC of the AMS to determine if he made the asserted errors in any event.

48. First, the Appeal Panel found that the AMS had concluded that the Appellant had worked “recently”. It interpreted that remark as if the First Defendant had not been in continuous employment (see paragraph 39). An examination of the AMS’s reasons show that he detailed continued employment by the First Defendant. The findings are set out at [23] above.

49. There was no basis for the Appeal Panel to conclude from the AMS’s use of “recent” and “recently” ([25] above) that the AMS did not understand that the First Defendant had been in continuous employment. Further, the first such reference correctly identified, in accordance with the First Defendant’s statement of 3 December 2012 that he had been employed as a boilermaker since June 2012, although without working with chemicals. It does not appear that Dr Freeman had that information, probably because she only examined the First Defendant on 3 August 2012.

50. There was also no basis for the Appeal Panel to assert that there was no difference in the work history given to Dr Freeman and the AMS. Dr Freeman took a work history from the First Defendant when she examined him on 3 August 2012, some two years and four months before the AMS saw the First Defendant, as follows:

Daniel Attard states that he became a boiler maker's apprentice in 1987 at age 15. He was in this trade until 1990 when he developed a hand dermatitis. He was employed by United Group Rail Services Pty Ltd, first at the Taree facility from 1993 to 1997, he then worked at the Auburn facility undertaking maintenance of State Rail trains (known as Maintrain).

As a boiler maker his main work was carrying out welding. At Maintrain he had to work in the paint shop where he was exposed to thinners and solvents. He states that he was given gloves and even double gloves but these did not protect him.

He was placed on suitable duties away from the paint shop for some months yet his hands did not heal.

He then left to work in sales until 2010 to 2011 when he returned to the trade.

He states that after he developed the hand dermatitis in 1990 whenever he tried to return to welding the general heat of welding caused his hand dermatitis to flare badly.

When he changed to working in sales from year 2000 to 2010, his hand dermatitis persisted but was not as severe.

In 2010 to 2011 he returned to the trade of boiler making but his hands immediately worsened.

He worked in 7 different boiler making jobs in the last year. Each time his hands would flare and he would leave the job and try another job. He said that the heat from the welding would flare his hands no matter what kind of gloves he wore.

54. Dr Freeman makes no mention of the First Defendant conducting his own business in home improvement materials in 2009, no mention of the self-employed work in a variety of locations including Gympie, no mention of the work at Performance Engineering. If the “work in sales until 2010 to 2011” was not the work at All State Trailer Services and Power Projects Pty Ltd, that was a further difference. It is difficult to compare the two histories as the doctors describe them. It cannot be said that they were the same.

55. The Appeal Panel’s own findings about the First Defendant’s employment is also open to the criticism of inconsistency. In paragraph 32 of its reasons it said that the AMS had made a mistake of fact since the Appellant had been in constant employment since he first contracted the condition. It then said in paragraph 36 that the documentary evidence before the Appeal Panel did not indicate that the Appellant had worked since his 2012 employment. Apart from the inconsistency with paragraph 32, paragraphs 13, 46 and 47 of the First Defendant’s statement of 17 June 2013 did indicate such employment. Those paragraphs said:

13.   Prior to my present work my previous positions that I have held were positions with Integrated Pumping Systems (Scott and Ensall) of Kunder Park in Queensland. I worked as a boilermaker. …I worked for them from June 2012 until April 2013. I only left them before I moved back down here to New South Wales.

…

46.   …I had to return to working with my career choice as a boilermaker. I enjoy doing the work. …

47.   At the present time I am able to work as a boilermaker or carpenter or gardener but not without pain. …

56. Secondly, the Appeal Panel concluded that the AMS had not given adequate reasons to explain why he differed from the near unanimous opinion of Dr Lobel and Dr Freeman. It may first be observed that there is a measure of hyperbole in the use of the word “unanimous” to describe two opinions, particularly when the word relates only to the percentage assessment those doctors made which were not identical.

57. The conclusion at paragraph 40 of the Appeal Panel’s reasons, even read in the light of paragraph 43, appears to indicate that the Appeal Panel saw an obligation on the part of the AMS to justify why he did not agree with the two other specialists.

58. Sections 324 and 325 of the Act relevantly provide:

324   Powers of approved medical specialist on assessment

(1)   The approved medical specialist assessing a medical dispute may:

(a)   consult with any medical practitioner or other health care professional who is treating or has treated the worker, and

(b)   call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and

(c)   require the worker to submit himself or herself for examination by the approved medical specialist.

…

325   Medical assessment certificate

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

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

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

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

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

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

…

59. It was no part of the AMS’s responsibility in his assessment to do other than take into account the assessments of prior medical specialists such as Dr Lobel and Dr Freeman, and there was certainly no obligation on him to explain why his assessment differed from theirs. That was not part of his statutory task: Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [9]; George v Wombo Lane Pty Limited [2010] NSWSC 660 at [24].

Conclusion

60. Since there was no demonstrable error shown in the Application to appeal, the Registrar had no jurisdiction to refer the matter to the Appeal Panel. There was, therefore, nothing identifiable in the Certificate of the Appeal Panel capable of fulfilling the proviso in s 327(4) to overcome the restraint against proceeding: Wombo Lane at [27].

61. However, even if I am wrong in that conclusion, the Appeal Panel itself erred in identifying the errors it did in the MAC of the AMS and erred, in any event, in giving consideration to them when neither was the error identified in the Application to appeal..

62. Accordingly, the orders I make are these:

1. An order in the nature of certiorari quashing the decision of the Second Defendant of 13 April 2015 referring the matter to an Appeal Panel;

2. An order in the nature of certiorari quashing the Certificate of the Third Defendant dated 24 June 2015;

3. An order in the nature of mandamus remitting the matter to the Second Defendant for the purpose of determining according to law whether, on the face of the application filed by the First Defendant and any submissions made in relation to it, whether any ground of appeal specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) has been made out and, if so, for the purpose of appointing a different panel to determine the First Defendant’s Application to Appeal against the decision of the Approved Medical Specialist.

4. The First Defendant should pay the costs of the Plaintiff.

5. The First Defendant should have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise so entitled.

**********

Decision last updated: 23 April 2018