Wetere v Coles Supermarkets Australia Pty Ltd

1. [1]

   In June and July 2021 Mr Wetere sustained physical injuries to both of his wrists while working for Coles as a delivery truck driver. He then suffered a further psychological injury at a time when he was performing light duties he had been given, which involved him standing at the front of a store supervising COVID check-ins. He felt overwhelmed by the hostility of customers and a meeting with his supervisor and regional manager, in which he claimed he had been harassed, verbally assaulted and bullied.

2. [2]

   Mr Wetere has never returned to work. He has pursued treatment, including surgery, for the injuries to his wrists, as well as for the psychological injury he was diagnosed to have suffered. Namely, a major depressive disorder with anxious distress.

3. [3]

   Still there was initially a dispute between the parties about whether he had suffered any psychological injury. That dispute was resolved in conciliation before the Personal Injury Commission in February 2024, Coles then conceding that he had suffered a work-related primary psychological injury. The Commission then ordered that the matter be remitted to the President for expeditious referral of that injury to a Medical Assessor for assessment pursuant to s 321 of the Workplace injury Management and Workers Compensation Act 1998 (NSW).

4. [4]

   The Medical Assessor later concluded that Mr Wetere had suffered 0% whole person impairment, having formed the opinion that his primary injury had resolved and that he was also suffering a secondary psychological injury which was not compensable: s 65A(1) of the Workers Compensation Act 1987 (NSW).

5. [5]

   Mr Wetere successfully appealed the resulting Medical Certificate the Assessor issued, with the Appeal Panel accepting that the Assessor had fallen into relevant error. It arranged to have him further assessed by one of its members, Dr Glozier and finally adopted his conclusions that Mr Wetere was suffering from a persistent depressive disorder, with resulting whole person impairment assessed at 7%. That being below the 15% statutory compensation threshold.

6. [6]

   This judgment deals with Mr Wetere’s application for judicial review of the Appeal Panel’s decision under s 69 of the Supreme Court Act 1970 (NSW). He seeks orders setting aside the Panel’s resulting Medical Assessment Certificate, his case being that it also fell into jurisdictional error and/or error on the face of the record.

Conclusion

1. [7]

   For the reasons which follow I am satisfied that the Appeal Panel fell into relevant error with the result that the Court must make the orders which Mr Wetere sought, there being no issue about their appropriateness, if that conclusion was arrived at.

Issues

1. [8]

   There is no issue about the operation of the statutory scheme or the principles applicable to Mr Wetere’s application.

2. [9]

   In issue between the parties is whether the Panel:

   1. (1)

      Exceeded its jurisdiction in impermissibly concluding, in effect, that Mr Wetere had suffered a “secondary psychological injury”, without using that term;

   2. (2)

      Made inconsistent, irrational and confusing findings about the main cause of Mr Wetere’s current psychological condition, a persistent depressive disorder, it having accepted that it had been his chronic debilitating physical limitations and frustration with the handling of his claims which had caused them, as well as contrarily, having concluded that his “persistent depressive disorder in toto is thus the primary psychiatric injury”; and

   3. (3)

      Failed to provide adequate reasons or explanation for its assessment of each of the six Psychiatric Impairment Rating Scale categories which it had to consider, in arriving at its conclusions about Mr Wetere’s whole person impairment.

The statutory scheme

1. [10]

   The 1987 Act requires that if a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury: s 65(2).

2. [11]

   Mr Wetere, however, suffered three separate injuries, one to each of his wrists and the third, a primary psychological injury which he suffered shortly after his last physical injury. Psychological injury being defined to include a psychiatric injury: s 65A(5) 1987 Act. Such an injury is compensable if work was a “substantial contributing factor” to the injury: SIRA Workers Compensation Guidelines for the Evaluation of Permanent Impairment cl 1.21. There was no issue between the parties about its contribution.

3. [12]

   Whether a person has suffered an injury, defined in s 4 of the 1998 Act, is for the Personal Injury Commission, not a Medical Assessor or Appeal Panel to determine: s 105 of the 1987 Act and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [111]-[112]. In the event of a dispute about the degree of impairment which has been suffered as the result of an injury, that degree must be assessed by an approved medical specialist: s 65(3) 1998 Act.

4. [13]

   No compensation is payable for any secondary psychological injury: s 65A(1) 1987 Act. “Secondary psychological injury” being defined to mean “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”: s 65A(5) 1987 Act. The example given in cl 1.22 of the Guidelines being of depression associated with back pain. Coles does not claim that Mr Wetere also suffered such an injury.

5. [14]

   Pain present as the result of an organic component must be assessed as part of the organic condition and may not be assessed as part of a psychiatric condition: cl 11.5 of the Guidelines.

6. [15]

   In Mr Wetere’s case there was no issue that the result of the parties’ agreement and the consent orders the Commission made was that the Medical Assessor and the Appeal Panel were confined to the assessment of the impairment caused by his primary psychological injury, that being what the Commission had referred for medical assessment. That assessment could not turn on any view the Medical Assessor or the Appeal Panel might have held about Mr Wetere also having suffered a secondary psychiatric impairment, as the Appeal Panel itself concluded: at [43] of its reasons.

7. [16]

   The assessment of Mr Wetere’s primary psychological impairment had to be undertaken in accordance with cl 11 of the SIRA Guidelines: s 322(1) 1998 Act. Clause 1.22 of the Guidelines providing:

8. [17]

   Consideration thus had to be given to the behavioural consequences of Mr Wetere’s psychiatric disorder, assessed by reference to six scales, which each evaluate an area of functional impairment: cl 11.11 of the Guidelines. Namely, self-care and personal hygiene; social and recreational activities; travel; social functioning (relationships); concentration, persistence and pace; and employability.

9. [18]

   Each area of Mr Wetere’s functional impairment having to be rated according to specified class descriptors, from 1 to 5, according to severity, using a standard form: cl 11.12 of the Guidelines.

10. [19]

    This exercise also required account to be taken of the Mr Wetere’s cultural background, as well as activities usual for persons of his age, sex and cultural norms: cl 11.12 of the Guidelines. The classes in each case reflecting no impairment, mild, moderate, severe or total impairment. With examples of activities given in the class descriptions being examples only.

11. [20]

    Both the facts on which an assessment is based and the reasons for the assessment have to be set out in the medical assessment certificate which results from a medical assessment: s 325(2) 1998 Act. A rationale for the ratings arrived at, based on Mr Wetere’s symptoms, also had to be provided: cl 11.6 of the Guidelines.

12. [21]

    They requiring that account be taken of his diagnosis, his own description of his functioning and limitations, that of family members and others who have knowledge of him, as well as medical reports, feedback from treating professionals and results of standardised testing, taking into account variations in the levels of his functioning over time.

13. [22]

    The grounds for appeal against an assessment are limited to those specified in s 327(3) of the 1988 Act. Namely, deterioration of the worker’s condition that results in an increase in the degree of permanent impairment; availability of additional relevant information that was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against; the assessment was made on the basis of incorrect criteria; and that the medical assessment certificate contains a demonstrable error.

14. [23]

    Mr Wetere’s appeal was successfully pursued on the basis that the Medical Assessor had made demonstrable errors. That appeal had to be heard by an Appeal Panel of three by way of review, fresh evidence led and a re-examination, if ordered by the Panel: s 328 of the 1998 Act. The Panel delegated the re-examination to one of its members, Dr Glozier, who provided a report which the Panel adopted.

15. [24]

    Mr Wetere has now exercised his right to seek judicial review of the Appeal Panel’s decision, contending that it too fell into material errors.

16. [25]

    There is no issue as to how a challenge to the adequacy of an Appeal Panel’s reasons must be approached. The Appeal Panel’s obligation was that explained in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; [2013] HCA 43.

17. [26]

    Namely, its statement of reasons had to explain the actual path of reasoning by which it arrived at the opinion it formed on the medical question referred to it. Its statement had to explain “that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”: Wingfoot at [55]. If it fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order removing the legal effect of the opinion can be made.

18. [27]

    The Court’s review of the Panel’s reasons must be approached in the way explained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271-272; [1996] HCA 6. That is, its reasons must not be “construed minutely and finely with an eye keenly attuned to the perception of error”.

19. [28]

    That does not involve a reconsideration of the merits of the decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. When considering whether an administrative tribunal’s error was material so as to constitute jurisdictional error “A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision‑making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.”: at [29].

20. [29]

    Reference there being made to Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 where Hammil J explained how the reasons of an administrative decision maker must be approached, by giving them a beneficial construction, following the approach taken by Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]. But that does not permit gaps in the path of reasoning to be filled “by reference to an assumption that the decision was made according to the relevant law”: Sadsad at [47].

21. [30]

    The Panel commenced its reasons with an explanation of Mr Wetere’s appeal, advanced on the basis of demonstrable error. It explained the background to the medical dispute about the impairment caused by his primary psychological injury which the Commission had referred for assessment. His claim having been that he had suffered 22% whole person impairment as the result of his primary psychological injury, diagnosed by Dr Kumagaya to be a major depressive disorder with anxious distress.

22. [31]

    The Panel noted the views of Dr Barrett, on which Coles relied, that his symptoms did not satisfy a psychiatric diagnosis, although she had accepted that an appropriate differential diagnosis would be an adjustment disorder with depressed and anxious mood, which she expected would resolve with the resolution of his various stressors. Noting that he planned to undergo two operations and that such a disorder would not be regarded as stable, until he had had further treatment on both his upper limbs.

23. [32]

    The Panel also noted the treatment Mr Wetere had pursued with a psychologist and his view, in 2022, that Mr Wetere needed the planned surgery to manage his symptoms, physical restrictions and psychological wellbeing. It noted, too, that in May 2023 he continued to feel depressed, anxious and distressed and was struggling to look after his two young children.

24. [33]

    The Panel then explained the challenged Medical Assessment Certificate and the Assessor’s conclusion that Mr Wetere had suffered 0% whole person impairment. The Panel next explained the cases which the parties advanced on appeal and why it concluded that Mr Wetere should be re-examined by Dr Glozier. The Panel explained:

25. [34]

    The Panel then quoted the entirety of the report it had received from Dr Glozier. He had not only explained the history he had obtained from Mr Wetere and his findings on clinical examination, but also his diagnosis and the results of his evaluation of Mr Wetere’s permanent impairment:

26. [35]

    The Panel adopted all of Dr Glozier’s conclusions, with the result that it assessed his whole person impairment to be 7%. The explanation of its conclusions being confined to:

27. [36]

    These reasons are attacked as not only being inadequate, but also disclosing the material errors into which the Panel fell.

28. [37]

    I am satisfied that the reasons given were inadequate.

29. [38]

    The Panel made no reference at all to the applicable class descriptors which it had to consider, by reference to the behavioural consequences of Mr Wetere’s psychiatric disorder. Nor did it explain why it concluded that the relevant consequences had brought him into one category, rather than another. It rather adopted Dr Glozier’s brief and inadequate explanations for his conclusions, earlier quoted.

30. [39]

    For example, in the case of the rating scale for employability, the descriptions of class 2, 3 and 4 for mild and moderate impairments which had to be considered were:

31. [40]

    Dr Glozier concluded that Mr Wetere’s impairment was mild, his explanation at [49] being confined to:

32. [41]

    It is apparent that Dr Glozier concluded that Mr Wetere was suffering limited symptoms relevant to the question of his employability, as the result of his persistent depressive disorder. That apparently flowing from Mr Wetere’s confidence that if his physical problems were supported, he could return to work in a manual occupation, albeit not at Coles, where he had been given the light duties which led to his psychiatric impairment, because the injuries to his wrists prevented him from driving or performing other physical work he had been given.

33. [42]

    The scales required the Panel to consider that Mr Wetere had not worked at all since he had suffered his psychiatric impairment. That having resulted from his confrontation with managers about those light duties, in a customer facing position in which he did not normally work. His employment history beforehand having been in heavy manual non-cognitively demanding labour and at Coles, in a 9 to 5 job in a less demanding delivery role, until the injuries to both his wrists prevented him from performing physical work.

34. [43]

    What had to be considered in that context was whether his psychiatric impairment permitted him to return to full time work, in a different environment to his pre-psychiatric injury job; whether he could work at all in that same position; the hours which he could work; and whether he could work in a different job and for how long.

35. [44]

    That could not turn on Mr Wetere’s belief that his physical injuries being supported at work would permit him to return to fulltime employment in a manual position.

36. [45]

    The Appeal Panel having adopted Dr Glozier’s conclusions as it did without further necessary explanation of what the Guidelines and class descriptors required it to consider, it must be accepted that it fell into error. The result was, I am satisfied, that its reasons did not disclose its actual path of reasoning, as they had to, even reading them in the beneficial way in which they must be approached.

37. [46]

    Nor did it undertake the consideration which that aspect of the Guidelines required, the gaps in its reasoning not being permitted to be filled by the assumption that it did give them the required consideration.

Did the Appeal Panel effectively conclude that there was a secondary psychological injury which contributed to Mr Wetere’s current impairment with the result that its reasons were contradictory and inconsistent with the applicable Guidelines?

1. [47]

   It is convenient to deal with these issues together.

2. [48]

   Mr Wetere’s case was that in reasoning as it did, while the Appeal Panel did not use the term “secondary psychological injury”, it based its conclusions on him having suffered such an injury. With the result that it had impermissibly had regard to the pain and dysfunction which it considered his physical injuries continued to cause him, in arriving at its conclusions about his psychiatric impairment.

3. [49]

   That was not for the Medical Assessor or the Appeal Panel to determine. Mr Wetere having suffered three separate injuries. The first in June 2021 to his wrist, the second in July 2021 to his other wrist and the third, his psychiatric injury, which he sustained the following day.

4. [50]

   There was no issue between the parties that he had not suffered a secondary psychological injury, and their medical dispute referred for assessment was concerned with the whole person impairment that had resulted from his primary psychological injury. The Panel could thus not rest its conclusions on any further psychological injury to which it considered his physical injuries or the pain they caused had contributed.

5. [51]

   But the Panel considered that Dr Glozier had concluded that the main cause of Mr Wetere’s persistent depressive disorder was his chronic debilitating physical limitations and associated pain, paraesthesia, numbness and poor motor control and frustrations with the insurers handling of these issues, were the primary cause of his current conditions. Still, it found that his persistent depressive disorder was “in toto” his primary psychiatric injury. That was confusing and not explained, as it needed to be.

6. [52]

   What contribution the pain Mr Wetere had suffered as the result of his earlier physical injuries had made could also not affect the assessment of his psychiatric impairment. It having to be considered in the assessment of his physical injuries.

7. [53]

   It followed that the result of the Panel’s approach to its task was that it exceeded its jurisdiction with self-evident adverse consequences for the outcome of the assessment it undertook.

8. [54]

   Coles’ case was that the Panel had not so erred. It had to consider the medical records which Dr Glozier analysed and the history Mr Wetere had given him, applying the Guidelines which regulated the assessment of his psychiatric impairment. Its reasons established that it had applied the Guidelines correctly, having assessed Mr Wetere’s impairment without consideration of the pain his wrist injuries caused him.

9. [55]

   The Panel’s reasons had to be understood in light of the comprehensive history Dr Glozier had taken from Mr Wetere about the consequences, physical and psychiatric, of all the injuries he had suffered and what his re-examination had revealed. The Panel’s reasons established that it had accepted the views he came to about the nature of the impairment which had resulted only from Mr Wetere’s psychiatric injury, as the Guidelines required.

10. [56]

    I am satisfied that the Panel did err in the approach which it adopted to its task, by accepting without analysis, criticism or sufficient explanation, Dr Glozier’s approach and conclusions, which did not accord with applicable requirements of the Guidelines.

11. [57]

    That what the Panel observed at [51]-[52] of its reasons is somewhat contradictory, must be accepted. What it intended to convey by them is not entirely clear.

12. [58]

    That it did not approach its task in the way that the statutory scheme required must, however, be accepted. That flows from how Dr Glozier approached the assessment of Mr Wetere’s impairment and how the Panel undertook its task, by adopting his conclusions, for the sparse and seemingly contradictory reasons it explained.

13. [59]

    There was no issue that Mr Wetere had also suffered a primary psychiatric injury as the result of his work for Coles, after the injuries he had suffered to his wrists. The Commission ordered that the impairment his primary psychiatric injury had caused be assessed. The Panel referred to this order at [8] of its reasons, concluding that the Medical Assessor had erred in his approach to that assessment, by assessing a secondary psychiatric injury which he considered Mr Wetere had also suffered.

14. [60]

    Whether any psychiatric injury had been suffered was for the Commission to determine. The Commission had determined so, it having been accepted in the Commission that Mr Wetere’s work had been a substantial contributing factor to his primary psychiatric injury.

15. [61]

    If the Commission had concluded that Mr Wetere had also suffered a secondary psychiatric injury, it would not have been compensable but would have had to be taken into account in the assessment of the impairment which had resulted from his primary injury, in the way explained in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213. That is, as s 65A requires, by disregarding in the assessment of the primary psychiatric injury, the permanent impairment resulting from the secondary injury: at [50]-[55].

16. [62]

    That requires, in the assessment of the degree of permanent impairment attributable to the primary psychological injury the subject of the claim, the secondary psychological injury to be identified and then disregarded, in the calculation of the degree of permanent impairment arising from the injury the subject of the claim: at [55].

17. [63]

    Properly, that exercise was not undertaken by Dr Glozier or the Appeal Panel. There having been no issue between the parties about whether he had suffered a secondary psychiatric injury, which had to be considered in the assessment of his primary psychiatric injury.

18. [64]

    The Act and Guidelines thus required that the Panel undertake its assessment of Mr Wetere’s primary psychiatric injury separately from a consideration of the impairment that had resulted from the physical injuries to his wrists and the pain which those injuries continued to cause him. That having to be assessed as part of his physical impairments.

19. [65]

    Despite all this the Panel considered that Dr Glozier had concluded that the main cause of Mr Wetere’s current psychological condition was his chronic physical limitations and symptoms associated with the injuries to his wrists and frustrations about the handling of his claims. Further, that they were intermingled with the causal component arising from the events on 9 July 2021 which resulted in his primary psychiatric injury.

20. [66]

    That approach, it must be accepted, is consistent with a view that Mr Wetere had suffered a secondary psychological impairment as a consequence of, or secondary to the injuries to his wrists. But the Panel also concluded that Mr Wetere’s “persistent depressive disorder in toto is thus the primary psychiatric injury”. The basis of this seemingly contradictory conclusion is not explained.

21. [67]

    The result was, nevertheless, that its assessment of the impairment caused by his primary psychiatric injury had to be undertaken without consideration of what contribution the injuries to his wrists and the pain they continued to cause him, had made.

22. [68]

    Dr Glozier indicated that he had approached his assessments of class function for the categories which had to be assessed by “discounting the marked impairments” arising from Mr Wetere’s physical limitations. That is not a process provided in the Act or Guidelines and how Dr Glozier undertook this “discounting” was not explained.

23. [69]

    If what Dr Glozier meant was that he had not taken account of the physical limitations Mr Wetere had explained in the history he gave or which his physical examination revealed, that does not accord with his assessment.

24. [70]

    That is because in Dr Glozier’s explanation of the conclusions he had arrived at about the various scales and categories he had to consider, it is apparent that he did take account of Mr Wetere’s physical limitations, in arriving at his conclusions.

25. [71]

    In the short reasons which the Panel gave for its adoption of Dr Glozier’s opinions, it explained that it was satisfied that they addressed the Assessor’s errors. Despite the brevity of the reasons he gave for the various conclusions which led to his determination of the level of Mr Wetere’s impairment, the Panel gave no further explanation for their adoption, other than satisfaction that Dr Glozier’s assessment had been derived from a thorough and detailed examination of Mr Wetere.

26. [72]

    What the Panel had to be satisfied of however, was that Dr Glozier’s conclusions were available, given what the legislation and Guidelines required be considered and what could not be taken into account in its assessment. That it was satisfied may be inferred, but the reasons upon which its satisfaction rested were not explained as they needed to be.

27. [73]

    As I have explained, the Panel accepted Dr Glozier’s view that Mr Wetere’s physical injuries had contributed to the psychiatric symptoms which he suffered and agreed with the account which Dr Glozier took of those physical injuries and their results, in his assessment of the impairment which his primary psychiatric injury had caused Mr Wetere.

28. [74]

    The assessment of Mr Wetere’s psychiatric impairment had to be undertaken by a consideration of the various rating scales and classes, which did not turn on the consequences of his physical impairments and the pain and other difficulties they continued to cause him. Neither the Panel nor Dr Glozier made any reference to what they required be considered, or how that had resulted in the conclusions Dr Glozier had arrived at, which the Panel accepted.

29. [75]

    Given the reference which was made to his physical limitations, I am satisfied that there is a proper basis for the conclusion that the requirements of the statutory scheme were not adhered to by the Panel as they needed to be, in its assessment of Mr Wetere’s primary psychiatric injury, its contradictory reasons not having established as they needed to, that the Panel had adhered to the requirements of the legislation and Guidelines which bound it.

Costs

1. [76]

   The parties did not address costs. The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that they follow the event. In this case that is an order that Coles bear Mr Wetere’s costs as agreed or assessed.

2. [77]

   Unless the parties approach to be heard within 14 days with short written submissions, that will be the Courts order.

Orders

1. [78]

   For these reasons I order:

   1. (1)

      Pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Appeal Panel’s 26 August 2024 Certificate, decision and statement of reasons are void and of no effect and that they be set aside.

   2. (2)

      That the matter be remitted to the Personal Injury Commission with a direction that a differently constituted Appeal Panel determine Mr Wetere’s appeal according to law.

   3. (3)

      That unless the parties approach to be heard within 14 days with short written submissions, the First Defendant is to bear Mr Wetere’s costs, as agreed or assessed.