Ferguson v State of New South Wales & Ors

1. [1]

   The plaintiff, Ms Ferguson, applies under s 69 Supreme Court Act 1970 (NSW) for judicial review of a decision of a medical Appeal Panel convened under s 328 Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘WIM’) revoking the prior medical assessment certificate of a medical assessor, which was more favourable to her, and issuing a new medical assessment certificate instead under s 328(5) WIM. Specifically, she seeks an order in the nature of certiorari quashing the legal effect of the new certificate, and an order in the nature of mandamus remitting the matter to the second defendant, the Registrar of the Workers Compensation Commission, to convene a different Appeal Panel to determine the appeal under s 327 WIM according to law.

The medical dispute

1. [2]

   Ms Ferguson was a serving police officer who was exposed to psychological trauma in the discharge of her office. There was no dispute that she suffered post-traumatic stress disorder and major depression to which her “employment was a substantial contributing factor”. There was no dispute that this psychiatric condition caused permanent impairment. The medical dispute is about the degree of impairment.

2. [3]

   In accordance with the provisions of Chapter 7 WIM, the dispute was referred for assessment by an approved medical specialist (‘AMS’), Dr Samson Roberts. Following examination of Ms Ferguson and consideration of the other material provided by the parties to the dispute, the AMS issued a medical assessment certificate under s 325 WIM certifying that Ms Ferguson’s degree of permanent impairment resulting from her psychiatric injury was 19 per cent.

3. [4]

   There were two contentious matters in the AMS’s assessment of Ms Ferguson’s condition which was made in accordance with the psychiatric impairment rating scale (‘PIRS’) prescribed by the WorkCover Guides for the Evaluation of Permanent Impairment made under the WIM. Those matters related to the AMS’s rating of the categories of social functioning and employability.

4. [5]

   Under s 326 WIM, the degree of impairment certified in the medical assessment certificate “is conclusively presumed to be correct … in any proceedings before a court or the [Workers Compensation] Commission”. Such an assessment is an appealable matter: 327(2) WIM. The grounds for appeal are limited by s 327(3) WIM.

Medical appeal

1. [6]

   The first defendant initiated an appeal by applying to the Registrar of the Commission (the second defendant) under s 327(4) WIM on the grounds that the AMS assessment was made on the basis of incorrect criteria, and the medical assessment certificate contained a demonstrable error. For the purpose of s 327(4), the Registrar was satisfied that “on the face of the application and [the employer’s] submissions” at least one of the grounds had been made out. The Registrar convened an Appeal Panel (the third defendant) under s 328(1) WIM constituted by two approved medical specialists and one arbitrator as specified in the subsection.

2. [7]

   I interpolate that in accordance with the usual practice in these matters, the second and third defendants have filed submitting appearances.

3. [8]

   In exercise of its function under s 328(2), the Appeal Panel upheld the appeal, revoked the AMS’s certificate of 17 March 2016, and issued a new certificate assessing the impairment suffered by Ms Ferguson as 9 per cent. This assessment is below the threshold of “greater than 10 per cent” for Ms Ferguson to be entitled to receive compensation for permanent impairment under s 66 Workers Compensation Act 1987 (NSW) (‘WCA’). The original assessment made by the AMS cleared the “at least 15 per cent” threshold fixed by s 151H WCA for work injury damages, if Ms Ferguson is otherwise entitled to that relief. The dispute therefore is not an arid one.

4. [9]

   The Appeal Panel accepted the employer’s arguments about the social functioning category, but rejected its arguments about the employability category. Although it may therefore have been open to find that the AMS’s assessment was made on the basis of an incorrect criterion, the Appeal Panel seems to have rested its decision on the ground that the “medical assessment certificate contains a demonstrable error”.

The issues for determination and relevant principles

1. [10]

   The central issue, of course, is whether the Appeal Panel’s decision conforms to law. The Court is not concerned with the merits of Ms Ferguson’s claim as it is not empowered to conduct a merits review of the Appeal Panel’s decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21.

2. [11]

   The Appeal Panel’s function is conferred by s 328(2) WIM which is in the following terms:

3. [12]

   In Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [40], Barrett JA (Gleeson JA agreeing) said:

4. [13]

   It needs to be borne in mind that these statutory powers, and indeed the statutory powers exercised by an AMS under s 324 WIM, provide for a method of dispute resolution by expert evaluation. The AMS at first instance and the two AMSs on the Appeal Panel are not only entitled, but obliged, to bring their professional expertise to bear in the exercise of their functions: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]:

Psychiatric Impairment Rating Scale

1. [14]

   It is necessary to set out the requirements of the Guides as to the evaluation of permanent impairment resulting from psychiatric injury. They are found in the Psychiatric Impairment Rating Scale (PIRS) which is applicable by virtue of Chapter 11 of the Guides. The requirements were summarised by the Appeal Panel in [22] to [24] of its reasons in the following terms:

2. [15]

   At [29], the Appeal Panel referred to Table 11.4 of the Guide classifying degrees of social functioning, relevantly as follows:

3. [16]

   The Appeal Panel understood that the employer was challenging the AMS’s assessment “on the basis that the AMS had applied incorrect criteria or made a demonstrable error in his allocation of two of the categories under the psychiatric impairment rating scale, ‘Social Functioning’ and ‘Employability”: Appeal Panel reasons at [27].

The decision of the AMS

1. [17]

   The AMS had accepted the account given by Ms Ferguson who he had interviewed for the purpose of his psychiatric assessment. Ms Ferguson had previously been in a bona fide domestic relationship with another young woman. To summarise his findings in my own words, the relationship was a life partnership having the usual incidences of such a relationship including sexual intimacy. The AMS accepted that the intimate relationship had failed during the illness, that there had been a period of separation for a duration of six months, but that the former partners had resumed living under the same roof “because [Ms Ferguson] was not coping on her own”. During that time Ms Ferguson had suffered symptoms of agoraphobia. On the AMS’s findings, the former partner moving back in did not signify a resumption of the previous relationship. Rather their relationship was now one of platonic friendship with her former partner providing support. She had a level of difficulty with other friendships and some family relationships.

2. [18]

   To make good its arguments, the employer submitted that because:

3. [19]

   Ms Ferguson submitted that the findings of the AMS were justified because the history he accepted demonstrated that “the relationship was severely strained”. The resumption of a relationship between the two did not indicate otherwise. The evidence indicated that the relationship had changed from its earlier intimate nature to one of a supportive friendship.

The Appeal Panel’s decision

1. [20]

   The Appeal Panel said that because the Registrar was satisfied under s 327(3) WIM that at least one of the grounds had been made out, it would conduct a review of the material before it to reach its own conclusions concerning the correct assessment: Appeal Panel reasons at [21]. I interpolate this appears to be a legally incorrect approach.

2. [21]

   First, it is well established that the Registrar’s role under s 327(4) WIM is that of a gatekeeper. The Registrar’s function is limited to satisfaction “on the face of” the material provided that at least one ground “has been made out”. This is in effect a leave provision and the appeal “is not to proceed” absent the Registrar’s satisfaction. The language of s 324(3) indicates that it is the Registrar’s function to make what I would call a decision at “first blush”. This is what is meant by the “on the face of” the material provided. It is not the Registrar’s function to decide whether the ground of appeal has actually been made good. Section 328(2) WIM confers that function on the Appeal Panel: “[t]he appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds on which the appeal was made”.

3. [22]

   I repeat, it is the Appeal Panel, not the Registrar, which has the function of deciding whether the grounds of appeal have been made good. The Appeal Panel’s contrary approach involved jurisdictional error: Cullen at [59]. However, it is clear that notwithstanding this mistaken interpretation of its governing statute, the Appeal Panel purported to decide that the employer had demonstrated error in accordance with s 328(2) WIM: see Appeal Panel Decision [41] – [42]; cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353 per Mason CJ.

4. [23]

   By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:

5. [24]

   The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.

6. [25]

   The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides “the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment”: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are “examples only”: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said “they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected”: Appeal Panel reasons at [37].

7. [26]

   The salient aspect of the Appeal Panel’s reasoning and conclusions appear at [38] to [42] and are as follows:

8. [27]

   It can be seen from paragraph [39] of its reasons that the Appeal Panel accepted a period of separation had occurred between March and August 2015. However, with respect, the Appeal Panel seems to have declined to inquire into the critical question that impressed the AMS which related to the markedly changed nature of the previous relationship after August 2015, that is to say, the change from a life partnership involving sexual intimacy to a more platonic friendship. The members of the Appeal Panel glossed over this by declining to inquire into that question on the basis that “the nature of the relationship was a private matter between them”. With respect, that sensitivity was misplaced. It was necessary for the Appeal Panel to deal with the substantive question of whether there had been that marked change in the relationship following the separation. Only after making a full assessment of all aspects of the relationship before and after the seperation could a decision be made about whether it was “severely strained”. Doubtless the Appeal Panel may have been at some disadvantage given that it did not have the benefit of the “face to face” assessment enjoyed by the AMS.

9. [28]

   I would not regard it as straining the language to assess a previously subsisting whole of life partnership involving sexual intimacy as being “severely strained”, or indeed “lost” (see Class 4), if a psychiatric injury resulted in breakdown of the relationship leading to one extended period of separation, followed by a new arrangement whereby the home was shared on the basis of a platonic friendship for the provision of support. Indeed, those facts would be capable of supporting an assessment that the previous relationship had been lost, pushing the matter into a Class 4: see Table 11.4, Chapter 11 of the Guides. I do not say that the facts found by the AMS “necessarily” put the matter into Class 3 or 4, but those facts left it open for such an evaluation to be made. But it is not correct to say, as the Appeal Panel held, that on those facts “it cannot be said on the evidence that the relationship remains ‘severely strained’” (my emphasis).

10. [29]

    The last sentence of [39] rather begs the question. The Appeal Panel said:

11. [30]

    If one concentrates upon the conclusions expressed at [42], it is clear that the Appeal Panel regarded the case as one of demonstrable error in the certificate because on the clinical findings made by the AMS, the Appeal Panel regarded the case as necessarily falling below Class 3. This is evident from the implicit finding that the assessment of the AMS is plainly unreasonable in as much as it necessarily fell outside the range of his “wide discretion”; that his finding was “glaringly improbable”; and, that “there is no evidence which indicates a degree of seriousness upon which a moderate impairment depends” (my emphasis).

12. [31]

    It must be accepted that even in its present more limited form, s 328 WIM confers a broad function upon the Appeal Panel. It is trite to say the Appeal Panel is essentially an expert panel whose function, subject to finding error, includes review of the facts. However, in the present case, the Appeal Panel found that the AMS fell into legal error because the Appeal Panel held facts as he found them to be necessarily fell outside and below Class 3.

13. [32]

    The Appeal panel also decided there was no material (no evidence) before the AMS which could support a Class 3 assessment in relation to social functioning. This is clearly a question of law: see Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32 at 418 [90] – [91]. At 418 [91] the plurality said:

14. [33]

    In my judgment the material before the AMS could support a Class 3 rating or assessment for impairment of social functioning; that is to say, a moderate impairment of social functioning. And the Appeal Panel’s decision that it could not is an error of law. Given that the Appeal Panel’s reasons form part of the record (s 69(4) Supreme Court Act 1970 (NSW)), the error is an error of law on the face of the record. Had that error of law not been made, the Appeal Panel’s decision might have been different by reason of the possibility that assessing the matter according to law it may then have confirmed the AMS’s assessment.

15. [34]

    I am satisfied that the plaintiff has made out a case for an order in the nature of certiorari. Given that the Appeal Panel has taken the view, erroneously in my opinion, that the facts could not possibly fall within Class 3, I think it appropriate that the matter on remitter be referred to a differently constituted Appeal Panel.

16. [35]

    My orders are:

    1. (1)

       Set aside the Appeal Panel Medical Assessment Certificate in matter number M1-004465/15 dated 5 August 2016;

    2. (2)

       Remit the matter to the second defendant for determination of the first defendant’s appeal by a differently constituted Appeal Panel chosen under s 328(1) Workplace Injury Management and Workers Compensation Act 1998 (NSW);

    3. (3)

       The first defendant to pay the plaintiff’s costs.