Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills

1. [1]

   HER HONOUR: This is a judicial review from a decision of a Medical Appeal Panel of the Workers Compensation Commission of NSW dated 5 June 2017 relating to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act).

2. [2]

   The plaintiff in this matter is Broadspectrum (Australia) Pty Ltd (Broadspectrum). The first defendant is Fiona Louise Wills (Ms Wills). The second defendant is the Workers Compensation Commission of NSW. The third defendant is the Medical Appeal Panel of the Workers Compensation Commission of New South Wales constituted by Arbitrator Ross Bell and Approved Medical Specialists, Dr Lana Kossoff and Dr Brian Parsonage (the Appeal Panel). The fourth defendant is the Approved Medical Specialist Dr Wasim Shaikh (the AMS). The second, third and fourth defendants filed submitting appearances.

3. [3]

   By summons filed 1 September 2017, Broadspectrum seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision of the Appeal Panel and issued by the Workers Compensation Commission dated 5 June 2017 is void and of no effect; secondly, an order setting aside the decision and the statement of reasons for decision of the Appeal Panel and issued by the Worker’s Compensation Commission dated 5 June 2017; thirdly, an order pursuant to r 59.10(2) Uniform Civil Procedure Rules 2005 (NSW) (UCPR) extending the time to apply to the Court for the commencement of judicial review proceedings in respect of the decision and statement of reasons of the AMS issued by the second defendant on 2 February 2017 to the date of the filing of this summons; fourthly, a declaration pursuant to s 69 of the Supreme Court Act that the decision and the statement of reasons for decision of the AMS and issued by the Workers Compensation Commission is void and of no effect; and finally, an order setting aside the decision and statement of reasons for decision of the AMS and issued by the Workers Compensation Commission on 2 February 2017.

4. [4]

   The decisions to be reviewed in this judicial review are firstly, the decision and statement of reasons for the decision of the Appeal Panel dated 5 June 2017; and secondly, the whole of the decision and statement of reasons of the AMS dated 2 February 2017.

Extension of time

1. [5]

   Broadspectrum sought an order pursuant to the UCPR 59.10(2) extending the time to apply to the Court for the commencement of judicial review proceedings in respect of the decision and statement of reasons of the AMS issued by the Workers Compensation and Commission on 2 February 2017 to the date of the filing of the summons. This was not opposed by the first defendant. The reason for seeking the extension of time was that the plaintiff appealed to the Appeal Panel. It handed down its decision on 5 June 2017 and the summons was filed on that day. While I am not convinced that the extension of time to file the summons to 5 June 2017 is necessary, for the absence of doubt, I grant this extension of time.

Background

1. [6]

   From March 2014 to July 2014, the plaintiff was employed by Broadspectrum as a full time social worker/case manager at the Offshore Processing Centre on Manus Island.

2. [7]

   The first defendant says as a result of a sexual assault where she was touched inappropriately by a client on 3 May 2014 at the Manus Island facility, she developed, over time, a psychiatric and/or psychological injury.

3. [8]

   On 11 October 2016 Arbitrator Edwards of the Workers Compensation Commission determined that the first defendant had sustained injury in the course of her employment.

4. [9]

   The question of the assessment of the first defendant’s whole person impairment (WPI) was referred to the AMS who confirmed his medical assessment certificate (MAC) on 2 February 2017. The AMS concluded that the first defendant had sustained a 21% WPI when assessed under the PIRS Rating Scale, which comprised an aggregate impairment of 19% WPI and a treatment effect of impairment of 2% WPI, resulting in 21% WPI. I shall refer to the AMS’s decision in more detail later in this judgment.

5. [10]

   Broadspectrum appealed the decision of the AMS relying on s 327(3)(c) (incorrect criteria) and s 327(3)(d) (demonstrable error) of the WIM Act.

6. [11]

   The Registrar (the gate keeper) was satisfied that at least one of the grounds of appeal was made out in accordance with s 327(4) of the WIM Act and referred the appeal to the Appeal Panel for review of the AMS’s decision.

7. [12]

   On 5 June 2017, the Appeal Panel confirmed the decision of the AMS and found that the assessment was based on correct criteria; and that there was no demonstrable error on the face of the certificate. I shall refer to the Appeal Panel’s decision in more detail later in this judgment.

The Statutory Scheme

1. [13]

   I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the Workers Compensation Act 1987 (NSW), the worker must show an injury which is defined in s 4 as follows:

2. [14]

   No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Section 9A(1) reads:

3. [15]

   Chapter 7, Part 7 of the WIM Act provides for medical assessment, including the assessment of the degree of WPI, by an AMS and, by way of review, appeal panels. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [1] per Basten JA.

4. [16]

   Approved Medical Specialists are appointed under the WIM Act to deal with medical disputes which are defined in s 319 to mean:

5. [17]

   Section 323 provides for the deduction for previous injury or pre-existing condition or abnormality. It reads:

6. [18]

   Section 325 relates to the medical assessment certificate. It reads:

7. [19]

   Appeals against medical assessments are governed by ss 327 and 328 of the WIM Act.

8. [20]

   Section 327 relevantly reads:

9. [21]

   Section 328 relevantly reads:

10. [22]

    Section 328(2) confines the grounds of appeal which an Appeal Panel may consider, to those pursued by the appellant.

11. [23]

    Section 331 of the WIM Act requires the Appeal Panel to apply the Guidelines in conducting its review. Section 331 relevantly reads:

The Guidelines

1. [24]

   The parties referred to a number of relevant provisions in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016) (“the Guidelines”).

2. [25]

   Clause 1.6 provides “a basic summary of some key principles of the permanent impairment assessment.” They include:

3. [26]

   Clause 11.10 of the Guidelines refers to pre-existing conditions. It provides:

4. [27]

   Clause 11.11 of the Guidelines sets out the Psychiatric Impairment Rating Scale (PIRS):

5. [28]

   Clause 11.12 of the Guidelines provides:

The decision of the AMS

1. [29]

   On 2 February 2017, the AMS took a history relating to the first defendant’s injury, summarised her present symptoms and treatment, noted her previous and subsequent work history and detailed any previous accidents before making findings with respect to her mental and physical state upon examination. The AMS then made his findings on the first defendant’s level of permanent impairment before completing the PIRS rating form.

2. [30]

   At [4] the AMS took a history relating to the injury:

3. [31]

   As to present treatment, the AMS recorded that the first defendant is currently under the care of Dr Andrew Christensen on a weekly basis in Brisbane. Various psychotherapeutic techniques are used during the sessions including Eye Movement Desensitisation and Reprocessing. The first defendant has also been an inpatient at psychiatric hospitals on four occasions, lasting between three and six weeks. She has also undergone several sessions of Electro-convulsive therapy at Belmont hospital, including acute and maintenance treatment. The first defendant is also under the care of psychologist Jacinta Wagner, who has known her for the past three years and she has previously been under the care of Dr Guha another psychiatrist.

4. [32]

   The AMS referred to the first defendant’s present symptoms at [5]:

5. [33]

   Under the sub heading “Details of any previous or subsequent accidents, injuries or conditions” the AMS made the following comments:

6. [34]

   The AMS then went on to record his findings in relation to the first defendant’s general health and work history before recording his findings with respect to her physical and mental state upon examination at [5]:

7. [35]

   Under the heading “Summary”, the AMS stated at [7]:

8. [36]

   The AMS stated that in terms of clinical syndromes, the first defendant presented with post traumatic stress disorder (aggravation), major depressive disorder, recurrent (aggravation) as well as alcohol misuse disorder. In terms of developmental and personality disorders, the AMS recorded that a personality disorder was not otherwise specified. The AMS observed that there were some inconsistencies in her presentation, but from an overall perspective, there was evidence of a moderately severe psychiatric disorder.

9. [37]

   Under the heading “Evaluation of Permanent Impairment” the AMS was asked the following question at 8(e) to (g) and provided answers:

10. [38]

    Under the heading “The Facts on which the Assessment is Based” the AMS at [9] stated:

11. [39]

    The AMS completed the PIRS rating form stated that first defendant presents with an impairment of 19% WPI. He recorded his brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why his opinion differed. The AMS stated at [10(c)]:

12. [40]

    At [11] the AMS was asked what deduction was to be made (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality. The AMS answered “Not applicable”. (My emphasis).

13. [41]

    However, in the MAC, the AMS deducted 1/10 for pre-existing injury, condition or abnormality, under s 323 of the WIM Act.

14. [42]

    There appears to be an inconsistency between [11] and the deduction made in the MAC.

Submissions on appeal

1. [43]

   Both parties made submissions on appeal. It is not necessary to reproduce them here as they are adequately covered in the Appeal Panel’s decision reproduced below.

The Registrar’s (gatekeeper’s) decision

1. [44]

   On 5 April 2017, at [5] the delegate of the registrar stated at [5]:

2. [45]

   The appeal was referred to the Appeal Panel.

The decision of the Appeal Panel dated 5 June 2017

1. [46]

   The Appeal Panel in its decision at [22] to [27] referred to some authorities relating to s 323. They read:

2. [47]

   The Appeal Panel’s decision then recorded Broadspectrum’s (the appellant) and the respondent’s (first defendant) submissions as follows at [28] to [36]:

3. [48]

   Under the heading “Discussion” the Appeal Panel at [39] and [40] reproduced the AMS’s notes of the history, the summary of injuries and diagnoses, comments in relation to the pre-existing condition or abnormality and his comments at Part 11.

4. [49]

   The Appeal Panel at [41] stated:

5. [50]

   The Appeal Panel addressed the s 323 appeal issue stating at [44] to [50]:

6. [51]

   The Appeal Panel made a finding that the assessment was based on the correct criteria; there is no demonstrable error on the face of the certificate; and confirmed the decision of the AMS.

Grounds of review

1. [52]

   Broadspectrum says that the decision of the Appeal Panel contained the following jurisdictional errors. They are as follows:

(a) Failure to find a demonstrable error

1. [53]

   Broadspectrum submitted that the reasoning of the Appeal Panel demonstrates that it mistakenly failed to find the error committed by the AMS, that error being a failure to provide any reasons at all for the 1/10th deduction.

2. [54]

   Broadspectrum referred to the decisions in Pereira v Siemens Ltd [2015] NSWSC 1133 (“Pereira”); Cole v Wenaline Pty Ltd [2010] NSWSC 78 (“Cole”); Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq) [2013] NSWSC 365 (“Elcheikh”) and Sadsad v NRMA Insurance Limited [2014] NSWSC 1216 (“Sadsad”).

3. [55]

   In Pereira, Garling J set out the correct steps to be taken in conducting a s 323 deduction at [81] to [90]. They read:

4. [56]

   In Cole, Schmidt J discussed the operation of s 323. Her Honour at [29] to [31] stated:

5. [57]

   Broadspectrum contended that the Appeal Panel’s comment at [50], “the AMS could have expanded on the reasons for his conclusion on section 323”, is a misstatement of what the AMS did, there were no reasons to expand upon. The plaintiff submitted that the concluding sentence at [50] that “The AMS has also considered and applied section 323 of the 1998 Act”, is a generous remark as if the AMS did consider or apply the terms of s 323, he did not disclose that fact.

6. [58]

   In Elcheikh, after referring to Campbelltown City Council v Vegan [2006] NSWCA 284 at [121] and [122], Schmidt J stated at [69] and [70]:

7. [59]

   Broadspectrum in oral submissions asserted that in the present case there is not even a bald statement that the Appeal Panel agreed with the conclusions of the AMS, there are simply statements indicating that the conclusions reached are consistent with the evidence. Broadspectrum submitted that the approach adopted by the Appeal Panel did not satisfy the obligation to give reasons, particularly when the AMS’s reasons are considered. (T 23: 45-50)

8. [60]

   In Sadsad, Hamill J at [47] and [48] stated:

9. [61]

   According to Broadspectrum, while the AMS’s reasons are entitled to a beneficial construction, this requirement does not extend so far as to fill in the gaps in the reasons of administrative tribunals. Therefore, although the AMS deducted 1/10th for a pre-existing condition, it cannot be said that he did so through the application of s 323. In oral submissions, Broadspectrum submitted that the Appeal Panel at [50] proceeded to assume reasons in the decision making process of the AMS, contrary to the position taken by Hamill J in Sadsad.

10. [62]

    Broadspectrum submitted that this is not the exemplar case for the operation of s 323(2), where it “will be difficult or costly to determine (because for example, of the absence of medical evidence)”, leading to the application of an arbitrary 10% reduction for the impairment due to previous or pre-existing condition or abnormality, to the contrary there was a substantial body of evidence available for the purpose of assessing the degree of impairment that is due to a pre-existing condition or previous injury. Broadspectrum also submitted that the reduction in s 323(2) is an exception to the general process of assessment. If there is a finding that a proper assessment would be difficult or costly to determine, that finding must be affirmatively made and explained.

11. [63]

    Therefore, even if it could be said that the AMS did apply s 323 of the WIM Act, he did not turn his mind so far as one can tell from his reasons, to the jurisdictional fact or necessary precondition that grounds the engagement of s 323(2). As such, Broadspectrum submitted that the case has not been properly engaged with at either level of the decision making process.

12. [64]

    The first defendant submitted that for there to be a deduction for a pre-existing condition from the assessment of the degree of WPI, the pre-existing condition must have the impact that because of the pre-existing condition the degree of WPI is greater.

13. [65]

    Both parties referred to Ryder v Sundance Bakehouse Pty Ltd [2015] NSWSC 526 (the Appeal Panel referred to a different paragraph), where Campbell J stated at [45]:

14. [66]

    Prima facie, a predisposition or vulnerability without more does not give rise to a deduction under s 323, as was recognised by the Appeal Panel in their reference to Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [46]. It has also been noted that the simple presence of a pre-existing condition without more does not properly found a deduction under s 323 of the WIM Act: see El Cheikh at [87] and [91].

15. [67]

    The first defendant submitted that the Appeal Panel correctly identified the AMS made a deduction of 2% WPI in respect of the pre-existing condition. The AMS was therefore aware of the pre-existing condition when he made the assessment. The first defendant asserted that an assessment of the deduction for a causally relevant pre-existing condition under s 323 can itself be a matter of clinical assessment and not one where expansive reasons are required.

16. [68]

    In oral submissions, the first defendant submitted that Broadspectrum did not provide any specific written submissions to the AMS on pre-existing condition and its causal impact in regards to s 323. Therefore, the AMS was entitled to simply provide the path for his reasons in accordance with what is stated in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, (2013) 252 CLR 480, 88 ALJR 52 (“Wingfoot”) at [55]. In other words, it was not incumbent upon the AMS to state reasons beyond the figure reached for the 1/10th deduction as it is clear from the context in which the AMS was operating that this default position was adopted. In circumstances where detailed contentions are not put forward as to what should happen the minimum legal standard applies: Vegan at [121] and [122]. These requirements set out above in terms of the minimum legal standard, are not even engaged in this case due to the way in which the material was put to the AMS.

17. [69]

    The first defendant referred to Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 25 (“Vitaz”), referred to by the Appeal Panel at [25] of its reasons.

18. [70]

    In oral submissions the first defendant also referred to the decision in State of New South Wales v Hill [2018] NSWSC 54 (“Hill”), where Campbell J stated at [49]:

19. [71]

    The first defendant submitted that Vitaz and Hill are authority for the proposition that an AMS is required to make an intuitive or evaluative judgment and in doing so, they rely upon and apply their own medical skill and expertise to the task: Wingfoot at [47]. The first defendant says that the Appeal Panel correctly identified that the AMS was aware of her pre-existing condition and the AMS was aware of its impact in terms of the effect of the injuries sustained while in Broadspectrum’s employment. The Appeal Panel also properly identified in the passages at [44] to [50], that the first defendant was effectively clear of ongoing symptomology at the time she commenced employment.

20. [72]

    Further, the first defendant says that even if there was an error in respect of the obligation to state reasons by the AMS, the Appeal Panel’s reasoning complies with that obligation. Based on the evidence and material, the Appeal Panel noted its conclusion that the 1/10th deduction was not made in error and is in itself correct.

21. [73]

    The approach that I have adopted is that both the AMS and the Appeal Panel’s decision must be read as a whole and I “should not read the reasons of the decision maker with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [67] per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at 291.

22. [74]

    The obligation to provide reasons has been explained in Wingfoot at [55]:

23. [75]

    As to whether the AMS turned his mind to the question of “whether a deduction is necessary for a previous injury, pre-existing condition or abnormality”, the AMS answered this question at 8(e) by saying “Yes”. In the accompanying table to the MAC, the AMS deducted 1/10th WPI pursuant to s 323 for a pre-existing injury, condition or abnormality. The AMS equated 1/10th WPI to 2% and deducted it from 21% resulting in a WPI of 19%. These are the only references that the AMS made to the 1/10th deduction.

24. [76]

    It appears that the AMS applied s 323(2), but he did not say that he did, nor did he explain why he did so. Section 323(2) applies “if the extent of a deduction under s 323(1) will be difficult or costly to determine because, for example, of the absence of medical evidence, it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.” Under the heading “details of previous or subsequent accidents, injuries or conditions” the AMS referred to a significant past injury of mental illness. He reported that the first defendant was sexually abused as a child by her grandmother’s neighbour when she was aged 10; she consulted Dr Guha in 2012, in relation to a sexual assault in 2007 and had counseling over a six month period. She was also subjected to domestic violence from her partner and restarted antidepressants.

25. [77]

    In response to the question raised under heading 11, “what deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, the AMS answered “Not applicable” but nevertheless it appears that he deducted 2%, being 1/10th for a pre-existing condition. The Appeal Panel characterised this comment by the AMS as a “slip” and considered that “the AMS could have expanded on his reasons for his conclusion on s 323”. This statement by the Appeal Panel is a misstatement as there were no reasons given by the AMS to expand upon.

26. [78]

    The AMS did not provide any reasons as to why he applied the 1/10th deduction under s 323(2) of the WIM Act. If the deduction under s 323 was going to be too difficult or costly to determine (because for example there was an absence of medical evidence) then the AMS needed to say so in order to fulfil the requirements of s 323(2). It is unclear why s 323(2) was applied in circumstances where the AMS had recorded the existence of two previous sexual assaults that involved counselling and medication. The AMS should have provided some brief reasons to explain the path of reasoning which lead him to apply a 1/10th deduction for pre-existing WPI set out in s 323(2).

27. [79]

    The Appeal Panel did not find a demonstrable error but rather approached its statutory task by filling in the gaps that were omitted by the AMS. This approach does not accord with what was said by Hamill J in Sadsad at [47]. It is one thing to give a beneficial construction to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by a reference to an assumption that the decision was made according to the relevant law. This is what the Appeal Panel did at [45] to [49]. The Appeal Panel should have found a demonstrable error. In doing so, the Appeal Panel misconstrued its statutory task.

(b) and (c) Failure to revoke the AMS’s decision and failure to conduct its own review when there was a demonstrable error

1. [80]

   Both (b) and (c) relate to the Appeal Panel’s failure to conduct its own independent review where there was a demonstrable error asserted in the reasons provided by the AMS. According to Broadspectrum, the Appeal Panel did not carry out its own evaluation of the evidence and thus failed to discharge its statutory function under the WIM Act.

2. [81]

   Broadspectrum referred to s 328(5) of the WIM Act, which stipulates that an Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke the certificate and issue a new certificate as to the matters concerned. The approach adopted by the Appeal Panel, in failing to acknowledge the error, speaks to an approach that was directed to simply confirming the MAC and justifying the 1/10th deduction made by the AMS.

3. [82]

   In support of the assertion that the Appeal Panel was required to conduct its own independent review of the material, Broadspectrum referred to Vannini v Worldwide Demolitions Pty Ltd [2018] NSWSC 572, where Fagan J stated at [59] to [63]:

4. [83]

   Thus according to Broadspectrum, the Appeal Panel was required in the exercise of its function, to consider whether the findings of the AMS were right or wrong having regard to the Appeal Panel’s independent review of all of the relevant evidence before it and the application of its own clinical expertise. It did not do so.

5. [84]

   Further, Broadspectrum asserted that the Appeal Panel at [46] relied upon the health screening report undertaken by the Salvation Army on 24 September 2013 (mistakenly said to be by the employer) to suggest the first defendant was “stable”. Broadspectrum says that this report was not undertaken by a psychiatrist and relied on self-reporting. Nor was the report prepared or undertaken for the purpose of determining whether the first defendant’s condition was continuing and would be contributing to any permanent impairment.

6. [85]

   According to Broadspectrum, this clearly demonstrates that the Appeal Panel failed to carry out its statutory task of review of the original medical assessment, thereby committing jurisdictional error: Siddick v WorkCover Authority of NSW [2008] NSWCA 116 at [100]; NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

7. [86]

   The requirement under s 323 is to determine the extent of the pre-existing condition to the current impairment. Broadspectrum submitted that there was an “avalanche” of probative medical evidence suggesting that the first defendant had significant conditions which required ongoing treatment at the time of her injury. The Appeal Panel failed to conduct its own evaluation of the extent of any deduction, because the Appeal Panel reduced its task to one where it purported to adjudicate on the medico legal opinions; that is, it had to choose either the assessment of Dr Lotz or the assessment of the AMS. The Appeal Panel therefore misdirected itself in relation to its task, and the application of s 323, and thereby committed jurisdictional error.

8. [87]

   Broadspectrum referred to Nicol v Macquarie University [2018] NSWSC 530, in support of the proposition that the Appeal Panel incorrectly approached its task with respect to the ongoing treatment required at the time of the subject injury, where I stated at [123]:

9. [88]

   At [145] and [146], I stated:

10. [89]

    Broadspectrum submitted that this is also the case in this matter when Dr Jetnikoff’s report is properly understood by reading the whole of his opinion, rather than simply reading the one sentence extracted by the Appeal Panel at [45] of its reasons. Further, when looking at a number of the other contemporaneous reports it is apparent that the submission the first defendant was in full remission should be rejected.

11. [90]

    Alternatively, Broadspectrum says that the Appeal Panel at [48] engaged in irrational or illogical reasoning by treating the first defendant as being ‘vulnerable’ to psychiatric illness at the time she commenced her employment with the plaintiff. The evidence shows that the first defendant was continuing to take anti-depressant medication for a major depressive disorder with generalised anxiety and post traumatic stress disorder. If the Appeal Panel had acknowledged that the previous condition had been continuing at the time of the subject injury, then it would have determined a greater reduction. The Appeal Panel also engaged in illogical and irrational reasoning in finding that a 1/10th deduction is not at odds with the evidence. This according to Broadspectrum it is not a rational assessment of all the evidence.

12. [91]

    The first defendant asserted that contrary to Broadspectrum’s submission, the Appeal Panel did not find that there was a demonstrable error in the certificate and as such did not need to conduct a new assessment in accordance with the requirements of the “two stage process” set out in NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33].

13. [92]

    Further, by applying the reasoning in Wu Shan Liang at 272, that “the reasons for decision under review are not to be construed minutely and finely with an eye keenly tuned to the perception of error”, the first defendant asserted that the Appeal Panel concluded that the AMS had not made a demonstrable error.

14. [93]

    The first defendant submitted that this is how the Appeal Panel resolved the issue. Alternatively, if they did find an error and then went on to assess the degree of WPI, doing the “two-step process” in ss 327 and 328 of the WIM Act, then [44] to [50] of the Appeal Panel’s reasons show that they assessed the same degree of WPI as the AMS. Importantly, the Appeal Panel’s reasons at [44] to [48] show the findings that were made on factual matters and [49] shows the correct application and why the 1/10th deduction was applied. The first defendant submitted that there can be no basis to complain about the outcome.

15. [94]

    According to the first defendant, the Appeal Panel did not reduce its statutory task to simply adjudicating on medico legal opinion. The reasons provided at [44] to [50] show that the Appeal Panel was dealing with Broadspectrum’s case based on its retained medico legal opinion, which the Appeal Panel was required to do in the procedural fairness sense as set out in Roger v De Gelder [2015] NSWCA 211.

16. [95]

    Contrary to Broadspectrum’s submission that the Appeal Panel applied the wrong test or asked itself the wrong question, namely that the Appeal Panel examined the question of the extent of any deduction by finding that the first defendant was “functioning quite well in the period leading up to the inquiry” and that she “had improved considerably in the period prior to the injury”, these facts did justify the Appeal Panel’s factual conclusions in regards to s 323. Further, the reasons must be read as a whole and those reasons do correctly dispose of the fact finding enquiry under s 323.

17. [96]

    The submissions made by Broadspectrum as to how the Appeal Panel treated the health screening and Dr Jetnikoff’s report are more akin to a merits review and should be disregarded. There were no reasons provided by the AMS as to his application of s 323(2) and he failed to properly carry out his statutory duty. This is a demonstrable error. The Appeal Panel failed to identify the demonstrable error but rather sought to fill in the gaps as stated in my conclusions in judicial ground of review (a). Had the Appeal Panel identified the error, it was obliged to carry out its own evaluation of the evidence. It did not do so. It failed to discharge its statutory function under s 328 of the Act.

Costs

1. [97]

   In respect to costs, by consent the plaintiff and first defendant are to pay their own costs.

2. [98]

   The first defendant did not suggest that declaratory relief was inappropriate if jurisdictional error and/or error of law on the face of the record was established. Accordingly, I am of the opinion that the relief sought in the summons should be granted.