Allen v Dux Manufacturing Limited

1. [1]

   HER HONOUR: This is a Judicial Review of a decision of a Medical Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”).

2. [2]

   The plaintiff is Louis Allen. The first defendant is Dux Manufacturing Limited (“the employer”). The second defendant is a Medical Appeal Panel constituted by Richard Perringnon, Drs John Garvey and Cyril Wong (“the Appeal Panel”). The third defendant is the President of the Personal Injury Commission of NSW.

3. [3]

   By summons filed 19 October 2021 the plaintiff relevantly seeks:

   1. (1)

      A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision issued by the second defendant on 19 July 2021 is void and of no effect.

   2. (2)

      An order setting aside the decision and the statement of reasons for decision issued by the second defendant on 19 July 2021

   3. (3)

      An order that the matter be remitted to the third defendant to be determined according to law.

4. [4]

   The employer consented to the relief sought. The second defendant filed a consenting appearance. Nevertheless, the Court needs to be satisfied there is an error from the Appeal Panel in order to grant the relief sought.

Background

1. [5]

   In an application to resolve a dispute dated 29 June 2020, the plaintiff claimed permanent impairment compensation in respect of impairment resulting from injuries to the left lower extremity, digestive system and TEMSKI scarring. On 20 July 2020 the employer filed a reply.

2. [6]

   The matter was referred to an approved medical specialist, Dr Richard Crane (“the AMS”), who examined the plaintiff on 9 and 12 October 2020. On 4 November 2020, the AMS issued a medical assessment certificate which certified that the plaintiff suffered from a 4% whole person impairment (“WPI”) resulting from the injury to the left lower extremity. The AMS did not make any deduction pursuant to s 323 of the Workplace Injury Act.

3. [7]

   On 1 December 2020, the plaintiff lodged an appeal against the medical assessment.

4. [8]

   The grounds for the appeal raised by the plaintiff were that the assessment was made on the basis of incorrect criteria and the medical assessment certificate contained a demonstrable error. No error is alleged in respect of the assessment of scarring.

5. [9]

   In support of the appeal, the plaintiff filed submissions which relied upon three grounds. The plaintiff firstly submitted that the AMS, the approved medical specialist (“AMS”) had erred by placing the Appellant in Table 17-38, Class 1. The plaintiff submitted that the findings on physical examination and the history taken by AMS did not meet the criteria for Class 1.

6. [10]

   The second ground was that the AMS had erred by failing to place the plaintiff in Table 17-38, Class 2. It was submitted that the findings on physical examination of the history taken by the AMS satisfied the criteria for Class 2.

7. [11]

   The third ground relied upon was that the AMS had erred when he found that the rectal bleeding, presumably from haemorrhoids, did not start until several years ago and was not related to the work incident.

8. [12]

   On 18 December 2020, the employer lodged a notice of opposition appeal against decision the AMS. That notice was accompanied by written submissions.

9. [13]

   The delegate of the Registrar was satisfied that a ground of appeal (either the application of incorrect criteria (s 328(c) or demonstrable error (s 328(d)) was capable of being made out and the matter was referred to the Appeal Panel.

10. [14]

    The Appeal Panel conducted a preliminary review and identified an error by the AMS. The Appeal Panel accepted the plaintiff’s submission that the AMS had erred when he assessed the plaintiff as Class 1 in Table 17-38 and not Class 2. The Appeal Panel also concluded that the AMS had erred with respect to his assessment of the digestive system. Dr Garvey, a member of the Appeal Panel, examined the Plaintiff on 24 May 2021 and provided a report, written to the Appeal Panel. The report was in the form used for a medical assessment certificate. Dr Garvey assessed the impairment of the left lower extremity as 10% whole person impairment (“WPI”) however he made a ½ deduction pursuant to section 323 of the Workplace Injury Act. The digestive system (which he described as haemorrhoids) was assessed at 2% WPI.

11. [15]

    The Appeal Panel adopted the reasoning and assessment of Dr Garvey in full and did not proffer any other reasoning. The medical assessment certificate of the AMS was revoked and a new certificate was issued which certified a 7% WPI.

12. [16]

    The plaintiff says that the decision of the Appeal Panel disclosed error of law on the face of the record and jurisdictional error.

13. [17]

    The distinctions between jurisdictional error and error on the face of the record were recently emphasised by Leeming JA (with whom Gleeson and Payne JJA agreed) in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236, where His Honour stated at [20]:

The Appeal Panel decision

1. [18]

   It is convenient that I refer to the relevant portions of the decision of the Appeal Panel here.

2. [19]

   The Appeal Panel, in their statement of reasons dated 19 July 2021, under the heading ‘5. Findings on psychical examination’ stated:

3. [20]

   Under the heading ‘7. Summary’ the Appeal Panel stated:

4. [21]

   Under the heading ‘8. Evaluation of permanent impairment’ the Appeal Panel stated:

5. [22]

   Under the heading ’10. Reasons for assessment’ the Appeal Panel stated:

Relevant legislation

1. [23]

   The relevant provisions of the Workplace Injury Act read:

Grounds of Appeal

1. [24]

   The summons filed 19 October 2021 sets out the following grounds of Appeal:

   1. (1)

      The Appeal Panel erred in point of law and made a jurisdictional error when it made a deduction pursuant to section 323 when this was not a matter that had been raised by the parties. (“s 323”)

   2. (2)

      The Appeal Panel erred in point of law and made a jurisdictional error when it failed to afford the plaintiff procedural fairness by deciding to make a section 323 deduction without hearing from the plaintiff. (“s 323”)

   3. (3)

      The Appeal Panel erred in point of law and made a jurisdictional error when it failed to give reasons for adopting the assessment of Dr Garvey. (“failure to provide reasons”)

   4. (4)

      The Appeal Panel erred in point of law and made a jurisdictional error when it failed to consider for itself the assessment of the degree of impairment resulting from the injury as it was required to do. (“failure to conduct a proper assessment”)

   5. (5)

      The Appeal Panel erred in law and made a jurisdictional error when it excluded the effects of a DVT diagnosed in 2017 from its assessment without considering whether there was a causal connection between the subject injury and the later occurring DVT. (“DVT”)

   6. (6)

      The Appeal Panel erred in law and made a jurisdictional error when it excluded the DVT diagnosed in 2017 from the assessment when this had not been done by the AMS and had not been a ground of appeal. (“DVT”)

   7. (7)

      The second defendant erred in law and made a jurisdictional error when it did not afford the Plaintiff procedural fairness when it decided to exclude the DVT diagnosed in 2017 from the assessment without giving the plaintiff an opportunity to be heard. (“Denial of procedural fairness/DVT”)

2. [25]

   I will group the Judicial Grounds in relation to the topics that they relate to. I will briefly set out the plaintiff’s submissions in relation to these grounds. The employer consented to the orders sought, it did not make any submissions.

Judicial Grounds (1) and (2) – (s 323)

1. [26]

   The grounds of appeal relied upon by the plaintiff were limited to three matters. The first two matters were a submission that the AMS had erred when applying Table 17-38 of the AMA 5th edition guides. The argument was that the presenting symptoms and examination findings by the AMS satisfy the criteria for Class 2 in the table and not Class 1. The employer had responded by submitting that each of the criteria for Class 1 had in fact been satisfied and that the criteria for Class 2 were not satisfied. With respect to grounds 1 and 2, the only relevant matters were whether the history and examination findings satisfied Class 1 or Class 2.

2. [27]

   The AMS had not made any deduction pursuant to s 323. None of the grounds raised by the employer argued that there was any error in this aspect of the AMS’ assessment. In its submissions, the employer also did not raise any matter about a deduction pursuant to s 323. It did not make any submission to suggest that the AMS had erred by not making such a deduction.

3. [28]

   The question of whether there should be a deduction pursuant to s 323 was simply not a matter in issue on the appeal.

4. [29]

   The role of the Appeal Panel was recently considered by the Court of Appeal in Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304. Basten JA (with whom Leeming and McCallum JJA agreed) said (at [26] and [29]):

5. [30]

   His Honour then went on to consider the decisions in Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 and Roads and Maritime Services v Roger Wilson [2016] NSWSC 1499. In both of those decisions, it had been held that once a medical assessment certificate had been set aside, the Appeal Panel was then required to conduct an assessment in accordance with the Workers Compensation Guidelines and that this meant that the new assessment could consider matters which had not been raised on appeal. His Honour held (at [35]):

6. [31]

   In this current Judicial Review, a deduction pursuant to s 323 was not the subject of the appeal and accordingly the Appeal Panel erred when it reconsidered that element of the assessment.

7. [32]

   In any event, the Appeal Panel did not give notice of any intention to consider whether there was a s 323 deduction and the plaintiff was denied an opportunity to provide evidence and to be heard on a matter which was not the subject of the appeal.

8. [33]

   Once an error was found by the Appeal Panel, it was entitled to conduct the assessment in accordance with the Workers Compensation Guidelines. However, the Appeal Panel was not entitled to raise a new matter that was not dealt with by the AMS nor raised in either parties submissions to the Appeal Panel. In my view the Appeal Panel, in adopting Dr Garvey’s reasonings in relation to s 323, made a jurisdictional error as it failed to properly exercise the powers conferred in the Workplace Injury Act. The decision of the Appeal Panel should be quashed.

Judicial Grounds (3)-(4) – Failure to provide proper reasons and failure to conduct a proper assessment

1. [34]

   The Appeal Panel resolved to have the plaintiff examined by one its members, medical assessor Dr Garvey, the Appeal Panel Tribunal Member (“APTM”)). Dr Garvey’s report is reproduced at [33] of the Appeal Panel’s decision. Dr Garvey set out the findings of the AMS, a history that he took from the plaintiff, findings on physical examination and a summary of special investigations. It is not clear why Dr Garvey set out the contents of the medical assessment certificate or the special investigations as they were all matters which were already in the material before the Appeal Panel. Dr Garvey set out his assessment of WPI.

2. [35]

   Having received the report from the AMS, the Appeal Panel did not then proceed to consider that report as part of the evidence before it. Rather, the Appeal Panel merely stated that it adopted the reasoning and assessment of medical assessor APTM (at [34]).

3. [36]

   The task for the Appeal Panel, having revoked the medical assessment certificate, was to then consider what was the correct assessment but limited to correcting the errors which had been identified in the grounds raised by the parties. This task required the panel to consider all of the evidence including the evidence of the plaintiff contained in the Application to Resolve a Dispute and all of the medical opinions. Dr Garvey’s conclusions were inconsistent with some of the opinions of the other medical specialists. What was required of the Appeal Panel was to analyse the opinions and to explain why it had reached a particular conclusion.

4. [37]

   The Appeal Panel had to conclude for itself what the correct assessment was. If it had carried out that task, it would have appreciated that there were deficiencies in Dr Garvey’s report. For example, Dr Garvey had concluded that a ½ deduction was appropriate pursuant to s 323. In reaching that conclusion, he had not addressed any of the steps described in El Cheikh v Diamond Formwork (NSW) Pty Limited (in liq.) [2013] NSWSC 365 (“El Cheikh”). Dr Garvey had not identified how the previous condition documented by Dr Farmer contributed to the current impairment. He did not explain why a deduction of 1/10th was inconsistent with the medical evidence and he did not explain how he reached the conclusion that a deduction of ½ was appropriate.

5. [38]

   In El Cheikh, Schmidt J concluded that the Appeal Panel had made an error of law when it had simply adopted the reasoning of the approved medical specialist. At [70], Honour said “the bald statement that the appeal panel agreed with the conclusions reached, for the reasons which the medical specialist had given did not satisfy the obligation to give reasons, particularly when the reasons which the medical specialist gave are considered…”

6. [39]

   The Appeal Panel made an error of law when it simply adopted the reasoning of a member of Dr Garvey, a member of the Appeal Panel. This approach does not satisfy the obligations to give reasons. The decision of the Appeal Panel should be set aside.

7. [40]

   It is now not necessary that I consider judicial grounds of review (5), (6) and (7).

Conclusion

1. [41]

   It is my view that the Appeal Panel made jurisdictional errors and errors of law in relation to judicial grounds of review (1), (2), (3) and (4). The decision of the Appeal Panel should be set aside. The matter is remitted to the President of the Personal Injury Commission to be determined according to law.

Costs

1. [42]

   As the first defendant consented to the relief sought, costs are reserved.

   1. (1)

      The decision and statement of reasons of the second defendant dated 19 July 2021 is set aside.

   2. (2)

      The matter is remitted to the third defendant to be determined according to law.

   3. (3)

      Costs are reserved.