CSR Limited v Jamie Leonard Smith

HER HONOUR: This is an application seeking review of a decision of the Appeal Panel of the Workers Compensation Commission. It involves a question as to whether the Appeal Panel was obliged to grant a party the right to make oral submissions at the hearing.

By summons filed 29 July 2010, the plaintiff seeks firstly, a declaration that the decision of the second defendant, the Medical Appeal Panel, dated 18 June 2010, involved error on the face of the record and jurisdictional error; and secondly, an order that the decision of the Medical Appeal Panel be quashed.

The plaintiff is CSR Limited (CSR). The first defendant is Jamie Leonard Smith (Mr Smith). The second defendant is an Appeal Panel of the Workers' Compensation Commission (the Appeal Panel) constituted pursuant to s 328(1) of the Workplace Injury Management & Workers' Compensation Act 1998 (the Act). The third defendant is the Registrar of the Workers' Compensation Commission (the Registrar). The defendants have all filed submitting appearances. CSR relied on the affidavit of Paul H Macken sworn 27 July 2010. Counsel appeared on behalf of the WorkCover Authority of New South Wales as amicus curiae.

The question of the appropriate role that WorkCover should play in proceedings of this nature was considered in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 at [54] - [64]. In Campbelltown City Council v Vegan, WorkCover was a party to the proceedings. The worker who was the first defendant took an active role. In those circumstances the role of WorkCover was confined to that of an amicus curiae. The distinction between Campbelltown City Council v Vegan and these proceedings is that in Campbelltown City Council v Vegan there was an active contradictor to deal with the merits of the case. Whereas in these proceedings there is no active contradictor.

In Fairfield City Council v Janet Brear & Ors [2010] NSWSC 480 and Energy Australia v Butler [2010] NSWSC 487, are instructive. In these cases WorkCover sought leave to appear as amicus curiae where the other parties had filed submitting appearances. Leave was granted by Barr J for WorkCover to appear as amicus. The WorkCover's role was confined to submissions on the law. No submissions were permitted going to the merits of the case.

On 11 October 2010, Hislop J granted leave to WorkCover to appear as amicus curie at this hearing. CSR opposed leave being granted to WorkCover to make submissions on the merits of the case at hearing before me but accepted that this Court has power to grant leave to amicus curiae to make submissions on law. I have followed the approach of Barr J and considered WorkCover's submissions in relation to the law only.

The grounds for review claimed in the summons filed on 29 July 2010 are firstly, an error by the Appeal Panel in failing to provide CSR with a hearing which was sought; secondly, an error by the Appeal Panel in not properly exercising the discretion in deciding whether to hold an assessment hearing; thirdly, an error by the Appeal Panel in not properly considering the grounds relied on by CSR on appeal to the Appeal Panel in circumstances where the Registrar was satisfied that at least one of the grounds of appeal is made out; fourthly, an error by the Appeal Panel in failing to revoke the Medical Assessment Certificate consistent with the finding of the Registrar and the grounds relied on by CSR; fifthly, an error by the Appeal Panel in failing to identify the clear reference in the Medical Assessment Certificate to the Approved Medical Specialist having been sent the documents excluded from the referral despite this being clear from paragraph 2 of the Medical Assessment Certificate; sixthly, an error by the Appeal Panel in failing to make a deduction as required by s 323 the Act; and seventhly, an error by the Appeal Panel in considering that there had been no injury to Mr Smith 's lower back after the injury which was the subject of the referral despite the reference to such a subsequent injury in the second paragraph on page 3 of the Medical Assessment Certificate (and elsewhere).

On 14 December 2009, Mr Smith's claim for lump sum compensation was referred to an Approved Medical Specialist ("AMS").

On 15 December 2009, the delegate of the Registrar wrote to the AMS specifying that the application and attached documents, excluding the reports of Dr Searle were forwarded to him.

On 21 January 2010, the Arbitrator determined the degree of permanent impairment in respect of the lumbar spine was to be referred by the Registrar to an AMS for assessment as a result of the injury on 17 August 2006, in accordance with the WorkCover Guides for Evaluation of Permanent Impairment. The documents to be sent to the AMS were inter alia specified to be the application and all attachments, excluding the reports of Dr Searle.

On 17 February 2010, Mr Smith was examined by the AMS who certified Whole Person Impairment ("WPI") of 6 per cent. The AMS stated at [2] of his written reasons that the documents which were referred to the Commission for assessment were the application and documents listed in, and attached to, the application and the reply and documents listed in, and attached to, the reply.

On 17 March 2010, CSR applied to appeal against the decision of the AMS.

On 22 April 2010, the delegate of the Registrar determined that on the face of the application and the submissions made, he was satisfied that a ground of appeal as specified in s 327(3)(d) of the Act was made out in that an error was capable of being shown in respect of the assessment of permanent impairment of the lumbar spine.

On 18 June 2010, the Appeal Panel confirmed the decision of the AMS.

Counsel for CSR submitted that there were errors by the Appeal Panel: firstly, in failing to provide it with the hearing which was sought; and secondly, in failing to properly exercise its discretion in deciding whether to hold an assessment hearing.

Counsel for CSR does not dispute that the Appeal Panel has a discretion as to whether or not it should agree to an oral hearing. Rather counsel submitted that the Appeal Panel failed to exercise its discretion in a proper manner. Likewise, WorkCover submitted that in this case an issue arises as to the discretionary nature of the decision whether or not to conduct an oral hearing as part of the appeal process. According to WorkCover, in this instance, the Appeal Panel considered Mr Smith's request that an oral hearing take place and decided that an oral hearing was not necessary in the circumstances. That is the matter which it submitted was wholly within the discretion of the Appeal Panel.

An appeal against a decision of an AMS is set out in s 328 of the Act. The statutory framework for medical assessment and appeal is contained in Part 7 of the Act and WorkCover Medical Assessment Guidelines published on 27 October 2006. Section 328 reads: "328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) ..."

The Act makes provision for WorkCover Guidelines for medical assessments and appeals.

Section 331 provides: "Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."

And in s 328(2) itself contains a provision that "WorkCover Guidelines may provide for the procedure on an appeal".

The Guidelines dated 25 October 2006 read: " Procedure of the Appeal Panel 45. An appeal panel consists of two approved medical specialists and one arbitrator. The appeal panel may adopt any of the following procedures in accordance with the needs of the individual cases: