Justice Health & Forensic Mental Health Network v Nichols

1. [1]

   HER HONOUR: This matter involves a review of a decision of the Personal Injury Commission made under s 323 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (“Workplace Injury Act”).

2. [2]

   The plaintiff is the Secretary, Ministry of Health (Justice Health & Forensic Mental Health Network). The first defendant is Christine Nichols (“the worker”). The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is Dr Wayne Mason in his capacity as a Medical Assessor appointed by the President of the Personal Injury Commission. The second and third defendants filed submitting appearances. The plaintiff was represented by Dr Blout of Counsel. The first defendant was represented by David Hooke SC. The parties relied on a joint court book (“CB”). The plaintiff also relied upon an affidavit of Michele Franco dated 21 March 2022 (“Franco Aff 21 March 2022”). The defendant also relied upon correspondence between the parties where the worker clarifies her submissions. I have treated these as supplementary submissions (“Ex 1”).

3. [3]

   By way of amended summons filed 16 February 2022, the plaintiff relevantly seeks the following orders:

   1. (1)

      An order pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) extending time for the plaintiff to bring these proceedings against the third defendant.

   2. (2)

      An order in the nature of certiorari quashing the decision of the third defendant, or in the alternative a declaration that the decision of the third defendant is void and of no effect.

   3. (3)

      An order in the nature of mandamus remitting the matter to the second defendant for referral to another Medical Assessor for an assessment of the first defendant according to law.

   4. (4)

      An order in the nature of certiorari quashing the decision of the second defendant, or in the alternative a declaration that the decision of the second defendant is void and of no effect.

   5. (5)

      An order in the nature of mandamus remitting the matter to the second defendant for referral to the President of the Personal Injury Commission to determine the plaintiff’s appeal pursuant to s 327(4) of the Workplace Injury Management and Workers Compensation Act 1998 according to law.

   6. (6)

      An order in the nature of certiorari quashing the Certificate of Determination of 16 November 2021 issued by the Personal Injury Commission.

Extension of time

1. [4]

   Firstly, I will deal with the application for extension of time to file the summons. The defendant does not oppose the application. In short, the plaintiff’s solicitor Michele Franco (aff 11.4.22) explained on 30 June 2021 a Medical Assessor gave a Medical Assessment Certificate finding the plaintiff had 15% Whole Person Impairment (“WPI”). The Medical Assessor arrived at this degree of impairment by finding the plaintiff suffered 17% WPI and deducting an assumed, rather than an actual, 10% for pre-existing condition, pursuant to s 323(1) of the Workplace Injury Act.

2. [5]

   On 26 July 2021, the plaintiff filed an Application to Appeal Against a Decision of Medical Assessor under s 327 of the Workplace Injury Act. The appeal was in time under s 327(5). On 13 October 2021 a Delegate of the President of the Personal Injury Commission gave a decision under s 327(4) of the 1998 Act refusing to allow the appeal to be heard by the Appeal Panel. On 3 December 2021 the plaintiff filed a summons seeking judicial review of the decisions of the Delegate and the Medical Assessor. Time under r 59.10 of the Uniform Civil Procedure Rules 2005 to commence proceedings without leave against the Medical Assessor expired after 30 September 2021.

3. [6]

   The plaintiff has correctly availed herself of the provisions for an appeal to the Appeal Panel under the Act. Hence, I grant an extension of time to file the summons up to and including 3 December 2021.

Background

1. [7]

   In 2008, the worker commenced employment with the Justice and Forensic Mental Health Network New South Wales (“the employer”) as an enrolled nurse.

2. [8]

   In April 2017 the worker returned to work at Silverwater minimum-security correctional facility following long service leave. On returning to work, the worker found that she had a new nursing unit manager, Mr Mohammed Trad.

3. [9]

   The worker claims that within a few days of returning to work Mr Trad started making inappropriate comments.

4. [10]

   The worker claims that Mr Trad would also “target, harass or micromanage” her.

5. [11]

   Over the course of 2017, the worker claims that the relationship between her and Mr Trad deteriorated to a significant degree and that Mr Trad was often abusive and rude to her.

6. [12]

   Towards the end of February 2018, the worker ceased working as an enrolled nurse at Silverwater.

7. [13]

   On or about August 2018, following retraining for a clerical role, the worker worked part-time (approximately four hours a day, three days a week) at Parklea correctional facility.

8. [14]

   On or about 12 October 2018, the worker ceased working in any capacity.

9. [15]

   On or about 12 June 2020, the worker made a claim on the workers compensation insurer for $56,860 for 22% WPI.

10. [16]

    On 2 October 2020, the insurer issued a notice disputing the worker’s claim under s 78 of the Workplace Injury Act. The insurer accepted that the worker was suffering from a psychological or psychiatric condition following aggravation of a pre-existing condition at work. However, the insurer did not accept that the injury was caused by bullying and harassment incurred during the course of employment. Further, the insurer did not accept that a deduction for pre-existing condition under s 323 should not be made when calculating WPI.

11. [17]

    On 19 February 2021, the worker filed an application to resolve the dispute in the Personal Injury Commission for injury with a deemed date of injury of 27 February 2018. In the alternative, the nature and conditions of the worker’s employment from 2009 to 12 October 2018, claiming $56,860 for 22% whole person impairment for psychiatric and psychological disorders.

12. [18]

    On 24 March 2021, the Personal Injury Commission, by consent of the parties, made orders granting the worker leave to amend her application so that the description of her injury read:

13. [19]

    The consent orders also provided for the matter to be referred to a medical assessor to assess the degree of permanent impairment, if any, as a result of psychological injury occurring on the deemed date.

14. [20]

    On 30 June 2021, Dr Wayne Mason, psychiatrist (“the Medical Assessor”), issued a Medical Assessment Certificate (“MAC”) for 15% WPI supported by reasons.

15. [21]

    On 26 July 2021, the insurer made an application to appeal the decision of the Medical Assessor.

16. [22]

    On or about 16 August 2021, the employer filed submissions in response.

17. [23]

    On 13 October 2021, Ms Kathryn Camp, as Delegate of the President of the Personal Injury Commission (“the Delegate”) gave a decision pursuant to section 327(4) of the 1998 Act that the appeal was not to proceed.

18. [24]

    On 3 December 2021, the employer filed a summons in this court.

The relevant legislation

1. [25]

   The relevant provisions of the Workplace Injury Act are as follows:

The relevant guidelines

1. [26]

   For completeness, I have included paragraph 11.10 of the NSW Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed that states:

The law

1. [27]

   Both parties referred to the decision of Cole v Wenaline Pty Ltd [2010] NSWSC 78 (“Cole”). In Cole, the worker had initially suffered an injury to his back in 1976 for which he had undergone surgery in the form of an L4/5 discectomy. In October 2005, he suffered an injury at work while he was maneuvering a 44-gallon drum of oil and fuel. As a result of that Injury, the worker underwent a further discectomy at the same level as the previous surgery. The majority of an Appeal Panel had made a deduction of one half pursuant to s 323 of the Workplace Injury Act. In granting relief, Schmidt J assessed the Appeal Panel as having incorrectly applied a s 323 deduction at [28]-[30]:

2. [28]

   In Cole, her Honour further explained the correct legal reasoning to be observed when applying a deduction under s 323 of the Workplace Injury Act when she said at [38]:

3. [29]

   In Elcheikh v Diamond Formwork (NSW) Pty Limited (in liquidation) [2013] NSWSC 365 (“Elcheikh”), again, Schmidt J considered the application of s 323 of the Workplace Injury Act and confirmed that a deduction under that section involves a three step process. At [126] it reads:

4. [30]

   In Elcheikh, her Honour also considered what reasons were required in circumstances where the conclusion was reached that the deduction was greater than 10%. Her Honour said at [139]-[141]:

5. [31]

   The parties also referred to Ryder v Sundance Bakehouse [2015] NSWSC 526 (“Ryder”). In Ryder, Campbell J provided further explanation of the s 323 deduction (at [45]):

6. [32]

   Her Honour continued at [52]-[54]:

Grounds of Judicial Review

1. [33]

   The grounds of review set out in the amended summons are as follows:

   1. (1)

      The third defendant [the Medical Assessor] made a jurisdictional error because the decision was so unreasonable that no reasonable decision maker would have made it, so that the decision was legally unreasonable.

   2. (2)

      The third defendant made a jurisdictional error because the decision contained legal error going to jurisdiction.

   3. (3)

      The second defendant [the Delegate] made a jurisdictional error because she asked herself the wrong question.

   4. (4)

      The second defendant made a jurisdictional error in failing to understand her jurisdiction.

   5. (5)

      In the alternative, the plaintiff relies on the grounds above as errors of law under s 69 of the Supreme Court Act 1970 (NSW).

2. [34]

   Thus employer has appealed two decisions, first that of the Medical Assessor and second that of the Delegate. I shall deal with them in turn.

The decision of the Medical Assessor dated 30 June 2021 (CB 49-62)

1. [35]

   I shall briefly refer to the relevant portions of the Medical Assessor’s decision. The Medical Assessor’s interview took place via zoom and lasted 2 and a half hours.

2. [36]

   The Medical Assessor recorded a brief history of the worker, including onset of symptoms and related events such as treatment. At times he asked the worker questions to clarify and further explain her evidence. For example, the Medical Assessor opined:

3. [37]

   Under the heading ‘5. Findings on physical examination’ the Medical Assessor recorded:

4. [38]

   Under the heading ‘Summaries of injuries and diagnosis’, he stated:

5. [39]

   When making an evaluation of permanent impairment, the Medical Assessor stated:

6. [40]

   The Medical Assessor positively determined that the worker had a pre-existing psychiatric (CB 56).

7. [41]

   Under the heading ‘Reasons for assessment’, the Medical assessor recorded:

8. [42]

   The Medical Assessor, in making his assessment, carefully recorded the opinions of Drs Michael Hong, Abdal Khan, Carl Nielson, Juanita Ruiz, Owen Samuels and Mr Robert Craig, as well as various hospital notes. The Medical Assessor set out in Italics his opinions on the contents of these reports. I have not set these out in full as Counsel for the plaintiff referred to them at length in his submissions. Suffice to say, there were many psychiatric and psychological reports that covered the worker’s psychiatric/psychological history before the current injury. Therefore, it cannot be said that there was an absence of medical evidence.

9. [43]

   With respect to appropriate deductions for pre-existing condition, under the heading ‘Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality’ the Medical Assessor recorded:

Appeal Grounds 1 and 2 – The Medical Assessor’s decision

1. [44]

   These appeal grounds are of short compass and relate to whether the Medical Assessor made jurisdictional errors (including ‘Wednesbury Unreasonableness’) and errors of law in relation to s 323(2).

2. [45]

   A court may give relief in respect of an administrative decision where the outcome of the decision lacks an evident and intelligible justification. The determination of the court on this plea is analogous to appellate determination of judicial discretion: MIAC v Li (2013) 249 CLR 332; [2013] HCA 18 at [76], [105]. Li was explained in MIBP v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [48]:

3. [46]

   In the alternative, a jurisdictional fact exists where the existence of a particular fact conditions the exercise of an administrative decision. The jurisdictional fact must have an objective existence so that it exists in fact, and it must be essential to the validity of the action under the relevant Act: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64; MIMIA v SGLB (2004) 207 ALR 12 at [37].

4. [47]

   The failure of the conditions of “difficult or costly” and not “at odds with the available evidence” in s 323(2) of the Workplace Compensation Act may render a decision to apply a 10% deduction for pre-existing condition invalid either for lack of an evident and intelligible justification, or for error of law.

5. [48]

   In the leading decision on s 323, Cole at [30], Schmidt J held that s 323 does not permit an assessment of previous or pre-existing injury or condition on the basis of assumption or hypothesis. Any assessment must have regard to the evidence. The only exception, under 323(2) provides an “assumption” that “is displaced if it is at odds with the available evidence”.

6. [49]

   It is reasonably clear that where a decision maker accepts that there is a previous or pre-existing injury or condition, the decision maker must assess that impairment having regard to the evidence. The only exception allows for an assumption of 10%, but only:

7. [50]

   The paradigm example given by the legislation of an assessment that will be difficult or costly to determine is where there is an absence of medical evidence. On the facts of this case, there was a wealth of evidence going to the worker’s pre-existing condition. The court is permitted to inquire into both the existence and quality of the evidence to determine whether the Medical Assessor was legally entitled to make a 10% deduction under s 323 of the 1998 Act.

8. [51]

   The Medical Assessor states that he had regard to the documents referred by the commission. The referral states that the documents consist of the Application to Resolve a Dispute and all its attached documents, and the Reply and all its attached documents ( 33).

9. [52]

   The Medical Assessment Certificate contained the following facts relevant to a pre-existing mental health condition of the worker prior to the deemed date of 27 February 2018:

10. [53]

    Under the heading “Reasons for Assessment” the Medical Assessor lists a series of reports and his reasons for disagreeing with them: (CB, 56-59). Most of the reports commented on by the Medical Assessor’s postdate the deemed date of injury – 27 February 2018. Those that do not are:

11. [54]

    The Medical Assessor diagnosed the worker as suffering from an adjustment order with anxiety (DSM-V) as a consequence of the harassment and bullying she had been subjected to the workplace and stated that she had a history of previous anxiety conditions and that she was vulnerable to the development of an anxiety disorder (Franco Aff 21 March 2022, 40).

12. [55]

    The Medical Assessor also diagnosed a pre-existing condition of “Other Specified Anxiety Disorder, which in DSM-V is a generalised anxiety disorder with limited to symptom attacks”, and diagnosed the worker as suffering from pre-existing Panic Disorder (Franco Aff 21 March 2022, 40).

13. [56]

    The worker was assessed as suffering 17% whole person impairment for psychiatric, psychological disorder and with a deduction of 10% for pre-existing condition, bringing the final figure to 15% whole person impairment (Franco Aff 21 March 2022, 45).

14. [57]

    The employer’s first argument, is that the extent of the deduction to be made was self-evidently not difficult or costly to determine. The Medical Assessor has devoted 4 pages of his reasons to analysing and discussing reports of other practitioners on the question of pre-existing condition (Franco Aff 21 March 2022, 41-44). It was clearly not difficult or costly for the Medical Assessor to do this.

15. [58]

    Second, the extent of the deduction to be made was not difficult or costly by reason of an absence of evidence.

16. [59]

    Third, by reason of the medical reports, the extent of the deduction was at odds with the available evidence of pre-existing mental health conditions:

17. [60]

    These pre-existing mental health conditions manifested in a person subject to significant non-work stressors also predating the deemed date of injury:

18. [61]

    In awarding an assumed 10% deduction for pre-existing condition under s 323(b) of the 1998 Act on the basis that actual assessment was difficult and costly and that the deduction was not at odds with the medical evidence, the Medical Assessor made a decision that lacks evident and intelligible justification.

19. [62]

    In the alternative, the Medical Assessor made an error of law in applying an assumed 10% deduction under s 323 of the 1998 Act in circumstances of the non-existence of one or both of the jurisdictional facts of “difficult or costly to determine” the true deduction, and the assumed deduction was not “at odds with the available evidence”.

20. [63]

    It is not conceded the MAC is an ‘administrative decision’ properly before this Court. An appeal of the Medical Assessment Certificate (“MAC) made by a medical assessor is governed by s 327 of the 1998 Act.

21. [64]

    The employer’s complaint regarding the MAC is directed at the Medical Assessor’s analysis, treatment of and/or weight given to certain aspects of the worker’s history. If such a complaint were available under s 327 of the 1998 Act, either as a demonstrable error or the application of incorrect criteria, then this is a remedy the employer must seek, and has sought, elsewhere.

22. [65]

    The Court is being asked to consider the merits of the MAC, and to usurp the statutory function of a Medical Appeal Panel, rather than to undertake judicial review. The Workplace Injury Act identifies a Medical Appeal Panel as the appropriate forum in which to undertake a merits appeal, provided that the third defendant has the necessary state of satisfaction to allow the appeal to proceed.

23. [66]

    As a consequence, this Court should not act, as it is being asked, to perform the function of a Medical Appeal Panel as an alternative to an appeal pursuant to s 327. In the exercise of the Court’s discretion, the Court should decline to entertain this part of the application. If there be material jurisdictional error on the part of the Medical Assessor, then relief may issue in respect of that decision requiring that the application to appeal be determined according to law; if there is not, then the avenue of appeal that is provided by the parliament has been exhausted, and the Court would not issue relief in a secondary level of appeal.

24. [67]

    It is not conceded that there is an error based on legal unreasonableness on the MA’s approach or point of construction and relies on the approach taken by Campbell J in Ryder at [52]-[54].

25. [68]

    In the employer’s submissions at [31]-[38], the plaintiff details (over two pages) the discussion and consideration the Medical Assessor gave to the prior history, which is in essence the same material the plaintiff relied on in its appeal against the decision of the Medical Assessor at [48]-[57].

26. [69]

    There can be no argument the Medical Assessor has ignored or not considered relevant evidence; rather, it is argued that he did not accord it the weight the plaintiff considered appropriate. Those purported failings were addressed in the first defendant’s submissions at [58]-[60]. The error that is asserted is not and could not be jurisdictional in character.

27. [70]

    As a precursor to the two page recitation of the evidence to which the Medical Assessor had regard, the plaintiff boldly declares (at PS 30):

28. [71]

    Putting to one side the rhetorical language, the submission strikes at the heart of the futility of this application; the plaintiff clearly disagrees with the opinion of the Medical Assessor; but that is no basis for an appeal under s 327.

29. [72]

    The plaintiff goes on to assert at PS [30] that this Court is permitted to enquire into both the existence and quality of the evidence to determine whether the MA was legally entitled to make a 10% deduction under s 323 of the 1998 Act. There appears to be no substance in the argument on either existence or quality, given that the MA recorded and discussed it, and the plaintiff relies on the same material.

30. [73]

    The plaintiff advances three arguments to support the contention the MAC is affected by jurisdictional error.

31. [74]

    The first argument (the employer’s submission [39]) asserts it was self-evidentially not too difficult or costly to determine an appropriate deduction under s 323. The real question is, whether the determination by the Medical Assessor was open to the Medical Assessor as the repository of the statutory task of determining this very issue. The challenge is couched as one of legal unreasonableness, but, as argued, is no more than a disagreement with the outcome.

32. [75]

    The second argument (the employer’s submissions [40]) sets out a further recitation of the evidence said to advance the plaintiff’s arguments on the merits of the MAC. The same arguments formed the basis of the appeal to the President for referral to the Medical Appeal Panel; the same response applies.

33. [76]

    The third argument (the employer’s submissions [41]-[44]) appears to be founded in quasi-medical arguments and asserts that the MA had made a decision that ‘lacks evident and intelligible justification’ (PS [43]), despite the four pages of reasons and analysis of the historical medical material by the MA, and the differential diagnosis arrived at in conclusion at [10]-[11] of the MAC. Again, this is no more than a disagreement with the MA’s assessment, and not a ground of appeal under s 327(3), as the delegate recognised.

34. [77]

    The starting point here is Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64. In relation to the duty of a medical panel to give reasons for its decision, the High Court stated at [55]:

35. [78]

    Also, I bear in mind that the reasons of the Medical Assessor are to be read fairly, as a whole and "are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. As I agreed earlier in this Judgment, there was no lack of medical evidence concerning the workers psychiatric/psychological condition both before and after the deemed injury.

36. [79]

    The Medical Assessor devoted a large portion of his reasoning process and the exercise of his knowledge, experience and medical judgment to analysing the medical reports and indicated why he agreed or disagreed with parts of those reports. It is plain from the reasons that the Medical Assessor relied on s 323(2) is because it was too difficult for him to assess the impairment when having regard to the complex evidence on the worker’s psychiatric/psychological history. In setting out his findings in relation to the medical evidence, the Medical Assessor decided that the worker’s pre-existing condition was most likely other specified anxiety disorder (DSM-5) being a generalized anxiety disorder activated in situational crisis.

37. [80]

    The Medical Assessor noted that there had been a history of previous anxiety conditions and that she was vulnerable to the development of an anxiety disorder. He attributed the worker’s pre-existing anxiety disorder largely to her very early childhood experiences prior to her adoption. He stated that this has given rise to an almost pan-anxiety disorder and extreme difficulty in emotional self-regulation under stress. The Medical Assessor noted that from various reports she was fearful of separations and on a number of occasions has initiated pre-emptive separations herself. The Medical Assessor determined that she was subject to panic attacks and has various phobias.

38. [81]

    Then the Medical Assessor summarised his findings in relation to prior injuries and the current injuries at [11] of his reasons:

39. [82]

    The Medical Assessor found that the most likely diagnosis of her pre-existing condition is Other Specified Anxiety Disorder, which in DSM-5 terms is a generalised anxiety disorder with limited symptom attacks and when generalised anxiety was not occurring more days than not. She also suffered from panic disorder. These conditions were activated during times of situational crisis and caused significant regression in her psychological functioning, thus accounting for her magical thinking and quasi-psychotic symptoms. Importantly, the Medical Assessor made a finding that when Ms Nichols was not stressed by situational crises her psychological functioning was unimpaired.

40. [83]

    The Medical Assessor has set out his diagnosis of the plaintiff’s psychiatric condition by prior to and after the deemed injury, indicating that the worker has a complicated psychiatric history both before and after the deemed injury and made the relevant diagnosis. In these circumstances it was very difficult for the Medical Assessor to determine the extent of the deduction for the pre-existing condition.

41. [84]

    The employer has set out specific incidents in the plaintiff’s life in an attempt to establish that the Medical Assessor should not have made the assumption in relation to s 323(2) of the Workplace Injury Act, and contends that the assumption is at odds with the available evidence. In my view, the Medical Assessor states “I assess the deductionable proportion as one-tenth”. By saying this, the Medical Assessor is emphasising that his application of s 323(2) is not at odds with the available evidence. In my view, when the medical evidence is viewed as a whole, it is not at odds with the Medical Assessor implementing s 323(2).

42. [85]

    In my view, the Medical Assessor did not make any error, be it a jurisdictional error of the Wednesbury unreasonableness type, a jurisdictional error of fact, or legal error on the face of the record in relation s 323(2). Judicial Grounds (1) and (2) fail.

The decision of the Delegate of the President

1. [86]

   On 26 July 2021, the employer lodged an Application to Appeal Against Decision of Medical Assessor. The employer appeals against the Medical Assessment Certificate on two grounds. Firstly, reliance on s 327(2) and secondly, in stating that the assessment was made on incorrect criteria.

2. [87]

   On 16 August 2021, the respondent lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor.

3. [88]

   On 13 October 2021, the Delegate of the President handed down her decision in relation to the Appeal (CB 63).

4. [89]

   The Delegate, at [12] of her decision, recorded that the main issue on appeal was that “the Medical Assessor allegedly erred in failing to apply a greater than 1/10th deduction to the overall assessment of permanent impairment.”

5. [90]

   The Delegate summarised the employer’s submissions at [20]-[21]. At [20] a more fulsome description of the issue is set out: (CB 65)

6. [91]

   Under the heading ‘Consideration’ the Delegate stated:

7. [92]

   The result was that the Appeal was not to proceed to the Appeal Panel.

8. [93]

   The employer submits the contemporaneous medical evidence enclosed in the Application to Resolve Dispute (“ARD”) and Reply reveals the severity of the worker's past psychiatric condition.

9. [94]

   Additionally, the employer submitted, the Medical Assessor said there was a history of previous anxiety conditions which made the worker vulnerable to the development of anxiety disorder. The Medical Assessor attributed her pre-­existing anxiety disorder largely to her early childhood experiences prior to her adoption. He said this gave rise to an almost pan-anxiety disorder and extreme difficulty in emotional self-regulation under stress. He commented she is fearful of separations and on a number of occasions has initiated pre­emptive separations herself. She is also subject to panic attacks and has had various phobias.

10. [95]

    Despite this, at page 12 of the MAC, the MA assessed the worker as suffering 15% WPI for the psychological injury, after making a deduction of one tenth under s 323 of the Workplace Injury Act.

11. [96]

    The employer submitted the contemporaneous medical evidence enclosed in the ARD and Reply reveals the severity of the worker's past psychiatric condition.

12. [97]

    Additionally, the employer submitted, the Medical Assessor said there was a history of previous anxiety conditions which made the worker vulnerable to the development of anxiety disorder. He attributed her pre­existing anxiety disorder largely to her early childhood experiences prior to her adoption. He said this gave rise to an almost pan-anxiety disorder and extreme difficulty in emotional self-regulation under stress. He commented she is fearful of separations and on a number of occasions has initiated pre-­emptive separations herself. She is also subject to panic attacks and has had various phobias.

13. [98]

    Despite this, at page 12 of the MAC, the MA assessed the worker as suffering 15% WPI for the psychological injury, after making a deduction of one tenth under section 323 of the 1998 Act.

14. [99]

    The one-tenth deduction is authorised by section 323(2) which says:

15. [100]

    The respondent submits the contemporaneous medical reports from the worker's treating doctors, as well as the history recorded by the MA himself, indicate the severity of the prior condition and support a deduction under section 323 greater than one tenth.

16. [101]

    The respondent further submits the application of a greater deduction than one tenth under section 323 would not have been too difficult or costly to determine, because of the availability of the contemporaneous medical evidence, which the MA commented on and referred to in the MAC.

17. [102]

    The appellant therefore submits the MAC contains a demonstrable error and/or the AMS has applied the incorrect criteria in failing to provide a greater deduction than one tenth.

18. [103]

    In Craig v South Australia [1995] HCA 58 (1995) 184 CLR 163 at 179, the court held:

19. [104]

    First, the Delegate made a jurisdictional error at paragraph [12] of her decision by identifying the wrong issue before her. The Delegate’s formulation of the appeal is that it was a complaint that the deduction should have been greater than 10%. However the issue was not whether the deduction should have been greater, but whether the deduction of 10% was permitted under s 323 because it was too difficult or costly to determine, and was not at odds with the evidence. QBE’s submission was consistent with an argument that on the wealth of evidence before him about the workers preexisting condition, the Medical Assessor’s determination of a 10% deduction was not legally available to him.

20. [105]

    Second, and following from the first error immediately above, the Delegate made a jurisdictional error at paragraph [38] of her decision by identifying another wrong issue before her, or alternatively reached a mistaken conclusion. The Delegate states that “assessed impairment was a matter for the Medical Assessor, having regard to the available evidence”. However, the whole point of the appeal was that the Medical Assessor despite having had regard to available evidence before him, made an assumption of 10% deduction for pre-existing condition under s 323(2).

21. [106]

    Third, the Delegate made a jurisdictional error at paragraphs [35] and [36] of her decision by making an erroneous finding that a demonstrable error may not be made out by an error of fact. The authority of Vannini, referred to and relied on by the Delegate, itself considered an earlier decision of Marina Pitsonis v Registrar Workers Compensation Commission [2008] NSWCA 88, also extracted by the Delegate at [34]:

22. [107]

    Insofar as the Delegate considered, (wrongly) that the appellant was raising a demonstrable error of fact, the error of fact was capable of being a demonstrable error because the abundance of evidence was material to the Medical Assessor’s decision to make an assumption of 10% under s 323(2) of the 1998 Act, the error was apparent from the Medical Assessors own recitation of the evidence material to s 323(2) of the Workplace Injury Act and the error was sufficient to change the outcome of degree of whole person impairment.

23. [108]

    Fourth, the Delegate made a jurisdictional error at paragraph [39] of her decision in that she made an error of law about her jurisdiction, and the jurisdiction of an Appeal Panel.

24. [109]

    The process of oversight of the Medical Assessor by an Appeal Panel is one of appeal, not review. The deficiencies that the Delegate finds in the insurer’s written submissions on appeal - failure to argue a failure to give reasons, or to have regard to any particular evidence or recording an incorrect history or summary of the evidence – wrongly confine the available grounds of appeal to an Appeal Panel to those grounds that are available on review of an administrative decision by a court.

25. [110]

    Fifth, the Delegate made a further jurisdictional error at paragraph [39] of her decision in making further error of law going to her jurisdiction by taking an overly formal approach to the insurer’s appeal on the question of the insurer “demonstrating” Medical Assessor’s misapplication of s 323(2) of the 1998 Act. Section 43 of the Personal Injury Commission Act 2020 requires the Commission to act with as little formality and technicality as the proper consideration of a matter permits. The insurer’s submissions squarely established the factual basis for its submissions at paragraph 3(i) and (j) that a deduction of 10% was at odds with the available evidence and that it would not have been too difficult or costly to determine.

26. [111]

    The argument advanced as to the decision of the delegate (PS [53]-[57]) is confusing, at best.

27. [112]

    The employer’s first argument at PS [53] maintains:

28. [113]

    It is argued that:

29. [114]

    This is certainly a curious assertion when one looks to the submissions in support of the application to appeal the MAC (Franco Aff 21 March 2022, [48]-[57]) and, in particular, the submission numbered 3 which makes the basis for the appeal painfully obvious:

30. [115]

    It is impossible to reconcile the assertion made in this Court at PS [53] with the appeal submissions to the President for referral to a Medical Appeal Panel in circumstances where the appeal clearly asked the delegate to consider there was an error in the failure to make a greater deduction than one-tenth. Tested another way, if the plaintiff’s complaint was not that the Medical Assessor was bound to deduct more than one-tenth, what was the utility of the appeal (and what is the materiality of the asserted jurisdictional errors in this proceeding).

31. [116]

    The second submission made relative to the decision of the delegate (PS [54]) is said to follow from the above asserted error.

32. [117]

    The error is said to derive from the statement made by the delegate that the ‘assessed impairment was a matter for the medical assessor having regard to the available evidence’. The argument advanced by the plaintiff here is that the ‘whole point of the appeal’ was that the MA, despite having had regard to available evidence before him, made an ‘assumption’ of 10% deduction for pre-existing condition under s 323(2).

33. [118]

    There is no basis for the submission that the deduction made by the MA was an ‘assumption’. As observed above, the MA engaged in four pages of reasoning and analysis of the historical medical material before arriving at a differential diagnosis at [10]-[11] of the MAC.

34. [119]

    Further, the second and third pages of the MAC (Franco Aff 21 March 2022, [34]-[47]) (actually, the whole reading of the certificate itself) reveal that the Medical Assessor had been at pains to elicit a history of the issues the first defendant had dealt with from a psychological perspective; engaged with the history given by the first defendant in the clinical context on the day of examination; and expressed an opinion in accordance with his statutory task. The Medical Assessor process was entirely orthodox, and consistent with the approach required by the Workplace Injury Act.

35. [120]

    As observed in the worker’s response to the appeal (MF [58]-[60], at [24]):

36. [121]

    The third submission (at PS [55]), is that there is jurisdictional error in the delegate’s decision at [35] and [36], said to be constituted by the delegate holding that at demonstrable error may not be made out by error of fact. The delegate neither said nor held any such thing. Rather, the plaintiff appears to complain that the delegate did not accept its argument as to the weight that ought to have been accorded to certain elements of history, with the result that the delegate did not discern the demonstrable error. This is the very question of the delegate’s state of satisfaction that is committed to the second defendant under s 327(4), and is beyond the reach of judicial review. Even if (contrary to the first defendant’s submission) the delegate be wrong, he is wrong about a question (of fact) within jurisdiction so that there would be no jurisdictional error.

37. [122]

    In truth, there is no error of fact, but rather the plaintiff’s assertion that certain facts ought to have been seen its way, instead of the way they were evaluated by the MA. This deficiency in the plaintiff’s argument is repeated in the second body of the plaintiff’s submissions [55], where the plaintiff asserts:

38. [123]

    On the one hand, the plaintiff is asserting that the Medical Assessor did not have due regard to the evidence, but on the other concedes that the Medical Assessor had recited same. The argument is internally inconsistent and untenable.

39. [124]

    The fourth ground relied on was a jurisdictional error in the delegate failing to be convinced by the first defendant’s arguments with respect to the availability of an appeal or to identify any incorrect history or summary of the evidence.

40. [125]

    It is incumbent upon any appellant to identify the error that it is sought to have rectified, and the failure to do so on the part of the plaintiff at first instance was fatal to its appeal. That an error be identified as a precursor to an appeal is fundamental to the delegate’s role as a gatekeeper. Indeed, the need for an arguable case be identified was discussed by the delegate at [34] of the reasons with reference to Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, which referenced Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 (see Mason P at [62]), and more particularly the observations of Campbell J in Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [10] of the delegate’s reasons.

41. [126]

    There was no error of the kind asserted; and certainly no error capable of being characterised as jurisdictional so as to attract the Court’s jurisdiction under s 69 of the Supreme Court Act 1970.

42. [127]

    At the outset, the Delegate correctly recorded that the appellant challenged the Medical Assessment certificate on the grounds of the application of incorrect criteria under s 327(3)(c) of the Workplace Injury Act and demonstrable error under s 327(3)(d). The Delegate defined the main issue on appeal, not as precisely as she could have, as that the Medical Assessor allegedly failed to apply a greater than 1/10th deduction to the overall assessment of permanent impairment.

43. [128]

    In so far as the employer contends that the Delegate identified the wrong issue, she correctly identified the main issue to which the submissions relate. At [20]-[21] the Delegate sets out the employer’s issue on appeal more comprehensively. She then summarised both parties’ submissions and records that the employer asserted that at page 12 of the Medical Assessment Certificate, the Medical Assessor assessed the worker as suffering 15% WPI for the psychological injury, after making a deduction of one tenth under s 323 of the Workplace Injury Act. The employer contended that the contemporaneous medical reports from the worker’s treating doctors, as well as the history recorded by the Medical Assessor indicate the severity of the prior condition and support a deduction under s 323 greater than one tenth. The employer added that because of the availability of contemporaneous medical evidence, which the Medical Assessor commented on and referred to in the Medical Assessment Certificate, a greater deduction than on tenth under s 323 would not have been too difficult or costly to determine. One the above basis, the employer submitted that the Medical Assessment Certificate contains a demonstrable error and/or the Medical Assessor applied incorrect criteria in failing to provide a greater deduction than one tenth. The Delegate summarised the worker’s overall submission at [29] as that the employer, other than suggesting in broad terms that the deduction under s 323 should have been greater, identifies no demonstrable error or application of incorrect criteria by the Medical Assessor and that the appeal is little more than an expression of disgruntlement with the Medical Assessor’s opinion.

44. [129]

    The difficulty with the employer’s submissions in relation to incorrect criteria as noted by the Delegate is that it did not demonstrate or explain how failing to apply a greater than 1/10th deduction under s 323 of the Workplace Injury Act to the Medical Assessor’s overall assessment of permanent impairment is an error in the application of incorrect criteria. On this basis, the Delegate was not satisfied that the appellant has demonstrated error within the meaning of “incorrect criteria” under s 327(3)(c) is capable of being made out. Likewise in relation to demonstrable error with correctly reference to Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324. She also correctly referred to Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 as to the test of satisfaction that an arguable case of error appeared on the face of the record. More critically, the Delegate reasoned the extent of the contribution of the pre-existing conditions to the worker’s assessed impairment was a matter for the Medical Assessor, having regard to the available evidence.

45. [130]

    The fact that the employer considers that the evidence supports a greater deduction under s 323 does not constitute a demonstrable error. It is well accepted that a difference of opinion is not a demonstrable error. The Delegate further stated that the worker has not demonstrated that at deduction of 1/10th was at odds with the available evidence or that a deduction of greater than 1/10th was and how compliant it was not difficult or costly to determine within the meaning of s 323(2) of the Workplace Injury Act. The Delegate added that the worker has merely reproduced aspects of the evidence, without analysis, to assert that a deduction of greater than 1/10th should have been applied because of the severity of the prior condition and to this end the worker has not demonstrated that the Medical Assessor failed to correctly apply the test under s 323 or that the statutory assumption of a deduction of 1/10th should be displaced.

46. [131]

    It is my view that the Delegate properly exercised her function in accordance with s 373(4) Workplace Injury Management Act. Two flaws with the employer’s submissions were identified by the Delegate. They are that while the employer contended that there was incorrect criteria and or a demonstrable error it did not articulate or explain how this was at odds with the available evidence or how it was not difficult or costly to determine with in the meaning of s 323 of the Workplace Injury Management Act. She was correct,

47. [132]

    The employer’s submissions raise issues that are in the nature of a merits review. The Delegate did not ask herself the wrong question and she correctly understood and applied her statutory task as set out in s 327(3) and 327(4) of the Workplace Injury Act. Judicial Grounds 3 and 4 fail.

Result

1. [133]

   The result is that the application for judicial review is dismissed. The summons dated 16 February 2022 is dismissed.

Costs

1. [134]

   Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the first defendant’s costs on an ordinary basis.

   1. (1)

      The amended summons filed 16 February 2022 is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs on an ordinary basis.