The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard

1. [1]

   This is an application for administrative review of two decisions made in the Workers Compensation Commission of NSW. The first decision is that of a delegate (the Second Defendant) on 13 April 2015 who was satisfied that one of the grounds for appeal specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in the First Defendant’s application to appeal had been made out. The second decision was that of the Appeal Panel (the Third Defendant) in its Certificate and Statement of Reasons dated 24 June 2015 when it conducted the reassessment of the First Defendant.

Background

1. [2]

   The First Defendant was employed as a boilermaker and welder. He developed hand dermatitis around 2000 after being exposed to a solvent known as Gunwash which was used to clean his paint equipment. The dermatitis became progressively worse and he resigned from that employment in 2001.

2. [3]

   He subsequently worked with three employers and for a period of time conducted his own business.

3. [4]

   The dermatitis never fully settled and the first Defendant suffered flare-ups which often became infected.

4. [5]

   An arbitrator determined that the date of injury was 19 March 2012.

5. [6]

   The First Defendant was examined by Dr Lobel on 30 November 2011. In a report dated 6 December 2011 Dr Lobel assessed the First Defendant as having 16% whole person impairment from the injury.

6. [7]

   The First Defendant was examined by Dr Freeman who on 3 August 2012 assessed him as having 17% whole person impairment.

7. [8]

   On 4 September 2014 the arbitrator determined that the Plaintiff was liable to compensate the First Defendant. She remitted the matter to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment (WPI) resulting from the condition of chronic dermatitis. The First Defendant was assessed by Dr Sippe.

8. [9]

   On 15 December 2014 Dr Sippe provided his Medical Assessment Certificate and Reasons (MAC) in which he certified that the First Defendant’s whole person impairment was 13%.

9. [10]

   For the First Defendant to recover “work injury damages” he must be assessed at being 15% whole person impairment under s 151H of the Workers Compensation Act 1987 (NSW).

10. [11]

    On 13 January 2015 the First Defendant filed an application to appeal against the decision of the AMS. The ground of appeal specified was that the MAC contained a demonstrable error.

11. [12]

    The error was identified in paragraph 25 of the First Defendant’s submissions to the Registrar (the Second Defendant’s delegate) in these terms:

12. [13]

    On 13 April 2015 the Registrar determined that a ground of appeal specified in s 327(3)(d) was made out, that is that Dr Sippe’s MAC contained a demonstrable error. The Registrar nominated the members of the Appeal Panel and referred the appeal to the Panel.

13. [14]

    The Appeal Panel issued its Certificate and reasons on 24 June 2015. In effect it found a demonstrable error in relation to what the AMS said about the First Defendant’s employment and an error in not giving adequate reasons for explaining why the AMS differed from what was described as the “unanimous opinion” of Dr Lobel and Dr Freeman.

14. [15]

    The Summons was filed in this Court on 28 August 2015. Whilst that was within time for an appeal in respect of the Panel’s decision it was out of time for the relief sought against the delegate in permitting the appeal to go forward. Leave is required under Pt 59.10 (2) of the Uniform Civil Procedure Rules 2005 (NSW).

The legislation

1. [16]

   The following are the relevant parts of the Workplace Injury Management and Workers Compensation Act:

Should leave be granted?

1. [17]

   The First Defendant submitted that no explanation was provided by the Plaintiff for why there was a delay in filing the summons in respect of the Registrar’s decision. The First Defendant submitted that it would be futile to seek to quash the Registrar’s decision referring the matter to the Appeal Panel because the Panel has already carried out its statutory function. The Plaintiff is in the position of being able to challenge the Panel’s decision in relation to the principal argument put forward by the Plaintiff that the Appeal Panel erred because it was “cavilling” with the clinical judgment of the AMS. The First Defendant submitted that it was not necessary to obtain leave to appeal against the Registrar’s decision to do that.

2. [18]

   The Plaintiff submitted that it had provided an explanation in the affidavit of Reginald Malcolm Whare sworn 13 November 2015. In that affidavit Mr Whare said that he thought that, although the First Defendant had been permitted to pass through the “gateway” of the appeal process, the First Defendant would not necessarily succeed before the Appeal Panel.

3. [19]

   The Plaintiff submitted that if it was successful in overturning the Panel’s decision, the position would remain that the First Defendant had been allowed through the gateway on the basis of the same appeal ground having been established.

Determination

1. [20]

   Part 59.10(3) UCPR provides:

2. [21]

   In my opinion leave should be given to the Plaintiff to bring the proceedings concerning the Registrar’s decision out of time. A determination of whether demonstrable error is demonstrated in relation to the Appeal Panel’s decision is closely associated with a consideration of the same question in relation to the Registrar’s decision. The two matters are not necessarily co-extensive but it would be artificial to consider the one without the other.

3. [22]

   The First Defendant does not point to any prejudice that he or any other person will suffer from the grant of leave particularly because the Summons was only a little over one month out of time in relation to the Registrar’s decision. Whilst it is the case that the Plaintiff became aware of the Registrar’s decision within quite sufficient time to have permitted it to appeal against that decision it was not unjustified for it to await the Appeal Panel’s decision before seeking to appeal. If the Appeal Panel’s decision was that the appeal should not be upheld unnecessary costs would have been expended by unnecessary proceedings in this Court. Moreover, if the Summons had been filed within three months of the Registrar’s decision and the Appeal Panel had upheld the appeal (as it did) there is no doubt that the Plaintiff would have sought leave to amend the Summons to appeal against the Appeal Panel’s decision. In such a case the position would be exactly as it is now apart from the need to seek the leave.

Dr Sippe’s Certificate and Reasons

1. [23]

   In his MAC the AMS set out the First Defendant’s employment history as follows:

2. [24]

   Elsewhere in the MAC the AMS noted that the First Defendant had been able to work intermittently as a boiler.

3. [25]

   The AMS concluded:

Application to appeal

1. [26]

   In the submissions when the application to appeal was lodged, the First Defendant noted the criteria for class 2 impairment (which he was assessed as having) and also the criteria for the higher class 3 impairment. The criteria for the class 2 impairment was said to be that,

2. [27]

   He then went on to refer to findings of Dr Freeman and Dr Lobel as follows:

3. [28]

   Finally, under the heading “Orders Sought” the First Defendant relevantly said this:

The Appeal Panel’s Certificate

1. [29]

   In the Panel’s Certificate it noted that the First Defendant requested to be re-examined by an AMS who was a member of the Appeal Panel. However, the Panel determined that a re-examination was not necessary.

2. [30]

   The Panel’s conclusions are relevantly these:

The present appeal

1. [31]

   Because of a challenge to the breadth of what was argued at the hearing it is necessary to set out the grounds of appeal. The grounds are these:

2. [32]

   The Plaintiff identified two matters referred to in the reasons of the Appeal Panel that were said to amount to demonstrable errors on the part of Dr Sippe. The first error was to be found in the discussion in paragraphs 24 – 39. The error was said by the Panel to be that the AMS Dr Sippe wrongly found that the First Defendant was able to work “recently” and that in that regard the position differed from what Dr Freeman had ascertained about the First Defendant’s work history. The error is said to have occurred in paragraph (c) of the AMS’s MAC. Paragraph (c) was set out in the Appeal Panel’s reasons at paragraph 30. Paragraph 32 then identified, in the Appeal Panel’s opinion, that the mistake of fact was finding that the First Defendant had not been in constant employment.

3. [33]

   The second error asserted by the Appeal Panel was to be found in paragraphs 40 – 43 of its reasons. The error on the AMS’s part was said to be a failure to give reasons for differing from other opinions where there was unanimity or near unanimity as to the discretionary level of whole person impairment.

4. [34]

   The Application to appeal was put to the Registrar on the basis of the MAC containing a demonstrable error. As noted, that was said to be (paragraph 25 of the First Defendant’s submissions to the Registrar) that the symptoms would be more in line with at least a midway to high level of Class 2 impairment in accordance with the opinions of Dr Lobel and Dr Freeman.

5. [35]

   The Plaintiff submitted that neither of the errors found by the Appeal Panel was the demonstrable error relied on by the First Defendant nor found by the Registrar.

6. [36]

   The First Defendant submitted that the Registrar had formed the opinion that a demonstrable error existed, and the Appeal Panel then went on to identify what that error was. The First Defendant submitted that the Plaintiff’s submissions failed to consider what the Appeal Panel thought the error on the face of the MAC was. The error identified was the AMS’s failure to appreciate that the First Defendant had been in constant employment as opposed to working only “recently”.

7. [37]

   The First Defendant submitted that the Appeal Panel was not permitting the First Defendant to cavil at matters of clinical judgment formed by the MAS. Rather it was performing its statutory function. The First Defendant suggested that the reference to cavilling with matters of clinical judgment, derived from what was said by Mason P in Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366 at [59], was directed to something different, namely, the decisions of an AMS as to what symptoms the AMS thinks are relevant to record in his or her certificate.

8. [38]

   The First Defendant submitted that there was an error of logic and analysis in the approach of the AMS to Dr Freeman’s report because Dr Freeman and the AMS had a similar history and yet the AMS said he was coming to a different clinical view because the First Defendant had been able to work recently. He submitted that an error in logic or analysis could be a demonstrable error, and made reference to Haroun v Rail Corporation NSW [2008] NSWSC 160.

9. [39]

   The First Defendant submitted that there had to be flexibility in the consideration by an Appeal Panel of the grounds of appeal advanced by a worker. There was a sufficient connection between the error identified and what the Appeal Panel considered.

Did the Registrar err?

1. [40]

   The first issue is whether the Registrar’s decision that the error described in paragraph 25 was a demonstrable error was correct. In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] Hoeben J (as his Honour then was) said:

2. [41]

   That statement was approved by Mason P (McColl and Bell JJA agreeing) in Pitsonis at [49]. Mason P also said:

3. [42]

   In my opinion, an error suggesting that symptoms should be characterised in a particular way, whether being regarded as falling within a particular specified Class or assessed at some particular percentage or range of percentages, does not without more amount to a demonstrable error. What is involved in those type of assessments amounts to clinical judgment that ought not to be cavilled with. It is significant that the First Defendant did not assert his injuries should have been placed in a different Class, only that a different percentage should have been accorded to them within the Class he accepted they were correctly placed.

4. [43]

   The First Defendant accepted that it is not part of the Registrar’s functions to allow an appeal to proceed simply because the Registrar thinks the AMS ought to have found a higher percentage. The First Defendant said that would clearly be wrong. I agree. Although Mason P, when speaking of cavilling at matters of clinical judgement, was directing attention to failures to record or record correctly things told to the AMS, that does not detract from the significance of the statement that the task of the Appeal Panel is not to cavil with matters of clinical judgment. That must be partly, at least, because the Appeal Panel is not to conduct a merits review. The assessment of percentage WPI is undoubtedly a matter of clinical judgment.

5. [44]

   There was no basis for the decision of the Registrar that the Medical Assessment Certificate contained a demonstrable error. The matter should not have been referred to an appeal panel. The Registrar acted beyond jurisdiction.

Was the Appeal Panel in error?

1. [45]

   The role of the Appeal Panel was to deal with the demonstrable error identified as having provided the basis for the appeal: New South Wales Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [52]; Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 at [38]-[39]. The Appeal Panel made reference to the former of those decisions. It then said this:

2. [46]

   However, when the Appeal Panel came to consider the matter it did not confine itself to the ground of appeal in respect of which leave had been given to appeal. It first purported to find demonstrable error in relation to the First Defendant’s work history as found by the AMS. This is contained in its discussion in paragraphs 29 to 39 and, to some extent, in paragraphs 41 and 42. The Appeal Panel went on to criticise the AMS because it concluded that the AMS had drawn different conclusions about the First Defendant’s work history from Dr Freeman and said that there was no difference in the work history given to Dr Freeman and the AMS.

3. [47]

   Secondly, the Appeal Panel found that the AMS had not provided adequate reasons for differing from what it described as the “near unanimous view” of the medico-legal specialists. That view appears to have been the assessment by Dr Lobel of 16% WPI and by Dr Freeman of 17%.

4. [48]

   Neither of those asserted demonstrable errors was the error claimed by the First Defendant nor the error which in the Registrar’s determination justified the appeal proceeding. The First Defendant submitted that this matter was not covered by the grounds of appeal in the Amended Summons. I do not agree. Ground 4 is couched in wide terms. What is said in ground 4 to be the first of the Appeal Panel’s errors is that it was in error in determining that there was demonstrable error in the AMS in failing to provide adequate reasons. It seems to me that such an error on the Appeal Panel’s part may be demonstrated by showing that this was not the demonstrable error identified by the First Defendant in his application and agreed by the Registrar in referring the matter to the Appeal Panel.

5. [49]

   It may be accepted that the error found by the Registrar was not a demonstrable error, and might be thought to have pointed the Appeal Panel towards a merits review of the whole matter when no such review was permitted by the terms of s 328(2) of the Act. Nevertheless, in purporting to find those two errors the Appeal Panel acted beyond jurisdiction. It was confined to the error identified in paragraph 25 of the First Defendant’s submissions to the Registrar, if that error was properly a demonstrable error.

6. [50]

   It is, however, appropriate to examine the MAC of the AMS to determine if he made the asserted errors in any event.

7. [51]

   First, the Appeal Panel found that the AMS had concluded that the Appellant had worked “recently”. It interpreted that remark as if the First Defendant had not been in continuous employment (see paragraph 39). An examination of the AMS’s reasons show that he detailed continued employment by the First Defendant. The findings are set out at [23] above.

8. [52]

   There was no basis for the Appeal Panel to conclude from the AMS’s use of “recent” and “recently” ([25] above) that the AMS did not understand that the First Defendant had been in continuous employment. Further, the first such reference correctly identified, in accordance with the First Defendant’s statement of 3 December 2012 that he had been employed as a boilermaker since June 2012, although without working with chemicals. It does not appear that Dr Freeman had that information, probably because she only examined the First Defendant on 3 August 2012.

9. [53]

   There was also no basis for the Appeal Panel to assert that there was no difference in the work history given to Dr Freeman and the AMS. Dr Freeman took a work history from the First Defendant when she examined him on 3 August 2012, some two years and four months before the AMS saw the First Defendant, as follows:

10. [54]

    Dr Freeman makes no mention of the First Defendant conducting his own business in home improvement materials in 2009, no mention of the self-employed work in a variety of locations including Gympie, no mention of the work at Performance Engineering. If the “work in sales until 2010 to 2011” was not the work at All State Trailer Services and Power Projects Pty Ltd, that was a further difference. It is difficult to compare the two histories as the doctors describe them. It cannot be said that they were the same.

11. [55]

    The Appeal Panel’s own findings about the First Defendant’s employment is also open to the criticism of inconsistency. In paragraph 32 of its reasons it said that the AMS had made a mistake of fact since the Appellant had been in constant employment since he first contracted the condition. It then said in paragraph 36 that the documentary evidence before the Appeal Panel did not indicate that the Appellant had worked since his 2012 employment. Apart from the inconsistency with paragraph 32, paragraphs 13, 46 and 47 of the First Defendant’s statement of 17 June 2013 did indicate such employment. Those paragraphs said:

12. [56]

    Secondly, the Appeal Panel concluded that the AMS had not given adequate reasons to explain why he differed from the near unanimous opinion of Dr Lobel and Dr Freeman. It may first be observed that there is a measure of hyperbole in the use of the word “unanimous” to describe two opinions, particularly when the word relates only to the percentage assessment those doctors made which were not identical.

13. [57]

    The conclusion at paragraph 40 of the Appeal Panel’s reasons, even read in the light of paragraph 43, appears to indicate that the Appeal Panel saw an obligation on the part of the AMS to justify why he did not agree with the two other specialists.

14. [58]

    Sections 324 and 325 of the Act relevantly provide:

15. [59]

    It was no part of the AMS’s responsibility in his assessment to do other than take into account the assessments of prior medical specialists such as Dr Lobel and Dr Freeman, and there was certainly no obligation on him to explain why his assessment differed from theirs. That was not part of his statutory task: Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [9]; George v Wombo Lane Pty Limited [2010] NSWSC 660 at [24].

Conclusion

1. [60]

   Since there was no demonstrable error shown in the Application to appeal, the Registrar had no jurisdiction to refer the matter to the Appeal Panel. There was, therefore, nothing identifiable in the Certificate of the Appeal Panel capable of fulfilling the proviso in s 327(4) to overcome the restraint against proceeding: Wombo Lane at [27].

2. [61]

   However, even if I am wrong in that conclusion, the Appeal Panel itself erred in identifying the errors it did in the MAC of the AMS and erred, in any event, in giving consideration to them when neither was the error identified in the Application to appeal..

3. [62]

   Accordingly, the orders I make are these:

   1. (1)

      An order in the nature of certiorari quashing the decision of the Second Defendant of 13 April 2015 referring the matter to an Appeal Panel;

   2. (2)

      An order in the nature of certiorari quashing the Certificate of the Third Defendant dated 24 June 2015;

   3. (3)

      An order in the nature of mandamus remitting the matter to the Second Defendant for the purpose of determining according to law whether, on the face of the application filed by the First Defendant and any submissions made in relation to it, whether any ground of appeal specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) has been made out and, if so, for the purpose of appointing a different panel to determine the First Defendant’s Application to Appeal against the decision of the Approved Medical Specialist.

   4. (4)

      The First Defendant should pay the costs of the Plaintiff.

   5. (5)

      The First Defendant should have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise so entitled.