Queanbeyan Racing Club Ltd v Burton

1. [1]

   BASTEN JA: On 5 June 2013, Hannah Burton was thrown from a racehorse which she was riding at Queanbeyan Racecourse in the course of her employment with the appellant, the Queanbeyan Racing Club (“the Club”). She made a claim for worker’s compensation, leading to a dispute as to the extent of her injuries. On 28 September 2018 she filed an application to resolve the dispute with the Workers Compensation Commission. An assessment was undertaken by an approved medical specialist, from part of which she appealed to an Appeal Panel. The Club was dissatisfied with the certificate issued by the Panel and sought judicial review in the Common Law Division. The primary issue on this appeal by the Club concerns the scope of the functions and powers of an appeal panel under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”). The issue, briefly stated, is whether, having found error on the part of the medical assessor, the appeal panel was obliged to reconsider the assessment afresh, or whether its remit was limited to correcting the identified error.

Background circumstances

1. [2]

   The background circumstances to the review by the Appeal Panel may be briefly stated. The case comes before this Court by way of an appeal from the judgment of N Adams J in the Common Law Division delivered on 31 March 2021, rejecting an application for judicial review of the decision of the Appeal Panel. [1] Both the factual and procedural background are sufficiently set out in that judgment. They will be repeated only to the extent necessary to deal with this appeal.

2. [3]

   Ms Burton claimed that when thrown from the horse she suffered an injury to her lumbar spine, with a consequential nerve disorder in both legs. She made a claim for a lump sum payment of compensation under s 66 of the Workers Compensation Act 1987 (NSW) on the basis that she had suffered a permanent whole person impairment greater than 10%.

3. [4]

   In support of her claim, Ms Burton relied upon a report prepared by Dr WGD Patrick, dated 16 April 2018. Dr Patrick diagnosed a “significant lumbar spinal injury” and “a quite severe dysaesthesia bilaterally associated with her bilateral meralgia paraesthetica probably consequent upon her significant weight gain which I believe is a consequence of effects of her injuries of 5 June 2013.” Dr Patrick identified an 11% permanent impairment of the lumbar spine, and 3% impairments of each lower extremity (peripheral nerve). The total work- related whole person impairment was therefore 17%.

4. [5]

   The employer did not accept that she had any ongoing disability related to the accident. On 4 December 2019 an approved medical specialist, Dr Michael Davies, examined Ms Burton and assessed the lumbar spine injury at 7% whole person impairment and the peripheral nerve impairment of each lower limb as 1%, giving a total whole person impairment of 9%. The assessor accepted that she suffered an injury to her right hip and lower back when she fell from the horse. He also accepted that she had developed symptoms “consistent with meralgia paresthetica in both lower limbs.” [2] In further explanation of his assessment with respect to the lower limbs, Dr Davies stated: [3]

5. [6]

   Referring to Dr Patrick’s report, the assessor stated: [4]

6. [7]

   On 23 December 2019 Ms Burton submitted an application to appeal against the decision of the approved medical specialist. She alleged a “demonstrable error” pursuant to s 327(3)(d) of the Workplace Injury Act. Her challenge was restricted to the limited finding of impairment of the lower limbs. The submissions accompanying the application noted that the assessor did not make any specific finding that the applicant had no dysesthesia, but, on the other hand, did not assess dysesthesia. The submissions stated that dysesthesia does not require “hypersensitivity”.

7. [8]

   In 2019, an application for an appeal against an assessment was made to the Registrar of the Commission. The Registrar was required to consider whether “at least one of the grounds for appeal … has been made out”. [5] The appeal was only referred to an appeal panel if the Registrar were so satisfied. Thus, there was (and is) no right of appeal from a medical assessment certificate issued by an approved medical specialist; the Registrar plays a gateway function.

8. [9]

   The employer filed submissions opposing the application to appeal. The submissions noted that the application was “limited to what is described as a demonstrable error and is based on an alleged failure by the AMS to make a finding as to whether the claimant had dysesthesia.” The submissions further alleged that the AMS had “specifically indicated that he disagreed with the assessment made by Dr Patrick” and did not find dysesthesia. [6]

9. [10]

   On 8 January 2020, a delegate of the Registrar found that a ground of appeal had been made out, and the appeal should be referred to a medical appeal panel. She further stated that the panel “may determine an appeal solely on the basis of the written application and any written Notice of Opposition.” [7]

10. [11]

    The Appeal Panel was constituted by an arbitrator and two approved medical specialists, Dr Michael Fearnside and Dr Ross Mellick. The Appeal Panel gave its decision on 5 March 2020. In the opening paragraphs the Panel noted:

11. [12]

    The reasons of the Panel set out a summary of Ms Burton’s medical history and then noted that it had undertaken a preliminary review of the original medical assessment in the absence of the parties. It continued:

12. [13]

    Under the heading “Findings and Reasons”, the Panel commenced its findings with the following proposition:

13. [14]

    Under the heading “Discussion” the Panel set out certain findings made by the AMS and continued:

14. [15]

    The Panel then assessed a 4% whole person impairment for each of the lower extremities, which, with the 7% for the lumbar spine which was not under challenge, provided an overall whole person impairment of 15%.

Grounds of appeal generally

1. [16]

   Because the amount in issue is less than $100,000 the Club needs leave to appeal. As the matter has been set down for a concurrent hearing of the leave application and the proposed appeal, it is appropriate to consider the grounds set out in the draft notice of appeal. However, the grounds were discursive in form and did not closely encapsulate the arguments put by counsel for the Club, both in written submissions and orally at the hearing. The convenient course is to follow the approach taken in the written submissions as to the questions raised by the appeal.

2. [17]

   Ground 1 was said to raise the following issues:

3. [18]

   The first issue was thus whether the Appeal Panel is restricted to determining whether there was error on the part of the medical assessor in the terms identified in the grounds of appeal and not otherwise. This raised a question as to the function and powers of the Appeal Panel.

4. [19]

   Ground 3 was identified by reference to four questions, the first being:

5. [20]

   Ground 2 was said to raise the following two questions:

6. [21]

   Adopting the issues thus identified by the Club on its appeal to this Court, it is convenient to address grounds 1 and 3 together and before dealing with the more confined issue raised by ground 2.

Grounds 1 and 3: function and powers of Appeal Panel

1. [22]

   In the circumstances, it is convenient to start with the statutory scheme in order to identify the functions of the Panel. Provision for an appeal against a medical assessment is found in s 327 of the Workplace Injury Act, which relevantly provides:

2. [23]

   It is clear from these provisions that, first, the grounds for appeal are limited and must fall within one of the four categories identified in s 327(3). Secondly, satisfaction of the Registrar that at least one of the grounds for appeal specified in subs (3) has been made out is a gateway to referral to an Appeal Panel. Although subs (4) refers to the grounds of appeal specified in subs (3), as a practical matter the Registrar must consider the specific “demonstrable error” relied upon by an applicant in order to determine whether at least one of the grounds is made out.

3. [24]

   The manner in which the Appeal Panel is required to deal with an appeal is set out in s 328 which provides:

4. [25]

   Three propositions should be accepted as flowing from this statutory scheme. First, although the Registrar is required to be satisfied that a “demonstrable error has been made out”, the Appeal Panel may dismiss the appeal, and is no doubt obliged to do so, unless it is satisfied that there was an error and that the error is material.

5. [26]

   Secondly, s 328(2) requires that the review “is limited to the grounds of appeal on which the appeal is made.” Because the gateway function of the Registrar is satisfied if “at least one of the grounds” has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.

6. [27]

   The question of multiple grounds did not arise in the present case, except to the extent that a question was raised as to the lateral femoral cutaneous nerve in both lower extremities. Those were the two matters (really one matter) raised by the applicant and constituted the basis on which the Registrar referred the matter to a Panel.

7. [28]

   The third proposition concerns the steps to be taken by the Panel if it upholds the specified ground. Pursuant to s 328(5), the Panel has a binary choice: it may either “confirm” the certificate under appeal, or it may “revoke that certificate and issue a new certificate”. If it finds a material error, it will usually, if not always, revoke the certificate under appeal and issue a new certificate correcting the error. However, the Club identified an apparent anomaly in the process. What the Appeal Panel did in the present case was to revoke the earlier certificate and issue a further certificate which incorporated the unchallenged finding as to a 7% whole person impairment with respect to the lumbar spine and added to that figure its own assessments with respect to the lower extremities. The Club submitted that in taking that step, the Panel must have expanded its review beyond the part of the earlier certificate challenged as involving demonstrable error, because it had either reassessed the lumbar spine, or had adopted a finding of the AMS in relation to the lumbar spine, which it was not entitled to do.

8. [29]

   It is difficult to find in the statutory provisions support for the Club’s analysis. Reading s 328(2) and (5) together, it is inevitable that the limited review will, where there are aspects of the assessment which were not challenged, adopt those aspects of the assessment in issuing a further certificate. This reading of the statute was that applied by the primary judge, correctly. She was, however, invited to follow two authorities which would, in some circumstances, lead to a different view. It is therefore necessary to address the Club’s reliance on these cases.

9. [30]

   The earlier of the two was Drosd v Workers Compensation Nominal Insurer. [8] Justice Adams set out the following paragraphs from Drosd, in order to distinguish it from the present case:

10. [31]

    In Drosd, the assessor had identified an impairment of the right lower extremity, half of which resulted from a pre-existing injury or condition. With respect to the left lower extremity, the whole of the impairment was attributed to a pre-existing condition. The Panel found no error in relation to the right lower extremity, but reassessed the finding with respect to the left lower extremity. Both assessments had been the subject of the appeal. The judicial review proceedings raised two challenges with respect to the assessment of the lower left extremity on the basis that the findings of the Panel “did not accord with the Guides” which had to be applied. However, the 10% impairment for the left lower extremity (prior to reduction for any pre-existing condition) had not been challenged and was not a part of the appeal to the Appeal Panel. Nevertheless, Garling J accepted that the figure adopted was not permitted by the Guides and that the adoption of that figure by the Appeal Panel was a “jurisdictional error.”

11. [32]

    Assuming error, the identification of “jurisdictional error” may be doubted, but that is not the point of the present concern. The statement at [59], set out above, is wholly inconsistent with the understanding of the function of the Appeal Panel described in these reasons. It would have been impermissible for the Appeal Panel to reconsider an element of the assessment which had not been the subject of the appeal to it.

12. [33]

    To suggest that once the Panel has determined to set aside the certificate, it was “required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides” is also erroneous. The fact that the Panel decided to set aside the certificate did not expand the scope of its appeal function: rather, setting aside the certificate was the necessary consequence of the proper exercise of the appeal function. It is not necessary, for present purposes, to determine whether the approach adopted in Drosd was consistent with prior authority in the Common Law Division, though that may be doubted. [9]

13. [34]

    In Roads and Maritime Services v Rodger Wilson [10] the Court stated that once the Panel had determined that the certificate should be revoked, “it was incumbent upon them, as a matter of law, to apply the WorkCover Guides fully in arriving at a fresh assessment and issuing a new certificate.” In support of that proposition, reference was made to Drosd, following which the judge stated:

14. [35]

    To the extent that these decisions are inconsistent with the statements of principle based on the statute, set out above, they should not be followed. The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.

15. [36]

    Grounds 1 and 3 must be rejected.

Ground 2: procedural unfairness

1. [37]

   In the course of its discussion of the approach taken by the earlier medical experts, the Appeal Panel stated:

2. [38]

   The first aspect of the allegation of procedural unfairness was that the Appeal Panel failed to invite the parties “to comment on the definition of dysesthesia” before relying upon it. The second aspect, as put to the primary judge, [11] was that the Panel based its finding on the summary of the history given by Ms Burton to the medical assessor, without first warning the employer that they were considering that approach. The substantive point appears to be that the definition encompassed sensations which were “spontaneous or evoked” and the Panel departed from the medical assessor’s opinion because it considered that he had “focused only on what was evoked” and had ignored the history of “spontaneous” dysesthesia.

3. [39]

   Before the primary judge, the Club relied upon a statement by Button J in Pascoe v Mechita Pty Ltd, [12] a case dealing with a failure to inform the claimant that the Panel would rely upon particular tables to assess progressive hearing loss induced by noise (“the ISO”), which the plaintiff had not seen. The judge stated:

4. [40]

   The primary judge did not apply Pascoe in the circumstances but accepted the proposition that unless something was “within common knowledge, including that of the parties” procedural fairness required that the Panel not rely upon the matter without informing the parties.

5. [41]

   This reasoning is fraught and apt to give rise to error in two respects. First, the concept of “common knowledge” should not be proposed as a guideline to what must be conveyed in the interests of procedural fairness and what need not be conveyed. Secondly, the underlying foundation to this reasoning is, apparently, that the parties are entitled to make submissions to the Appeal Panel in relation to any matters adverse to their interests.

6. [42]

   With respect to both issues, the starting point for any understanding of procedural fairness must be the statutory scheme within which it is said to operate. The following statement by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak, [13] made in relation to the standard required of reasons given by a medical panel, is equally applicable to the functions of an Appeal Panel under the New South Wales legislation:

7. [43]

   A definition of a medical term is inherently something within the medical experience or expertise of the medical members of the Appeal Panel. They do not have to express those terms in language which is within the experience or expertise of the parties. Nor, if they wished to identify a distinction between evoked and spontaneous sensations, did they need to identify the authority which permitted either or both to be taken into account in assessing a particular condition. These were matters to be determined by the Panel in the exercise of their medical expertise. However, if in giving reasons both the distinction and the medical authority were identified, they did not become matters which fell within any obligation of advance disclosure to the parties.

8. [44]

   Turning to the second issue, it follows from this reasoning that there was no occasion requiring that the Panel give the parties an opportunity to make submissions. Given the terms of s 324(1) [14] and s 328(2)-(4), there will be limited circumstances in which a panel is obliged to allow a party to make additional submissions beyond those made to the Registrar in support of or in opposition to the proposed appeal. The Registrar’s notice of decision in this matter advised that the Appeal Panel “may determine an appeal on the basis of the written application and any written Notice of Opposition.” Because the appeal involved the formation of a medical opinion by medical experts that will often be the case. There should be no contrary presumption.

9. [45]

   Although the judge reached the correct conclusion, the passage from the judgment in Pascoe set out above provides no appropriate guidance in this field of decision-making. Ground 2 must be rejected.

Conclusions

1. [46]

   The Appeal Panel was required to give the grounds of appeal their ordinary meaning, in accordance with the understanding of the medical experts. The primary judge did not err in concluding that the Appeal Panel would have erred had it sought to identify an error “of its own”, not being the error particularised in the grounds of appeal.

2. [47]

   The complaint was that the medical assessor did not assess, or correctly assess, dysesthesia: the Appeal Panel found that this was an error and proceeded to assess the condition itself, as sought by the appellant. It was a question for medical opinion as to whether the appellant suffered from the particular medical condition: the “basis” on which it identified the condition was not a matter which needed to be put to the parties.

3. [48]

   The respondent submitted that the appeal was without merit and leave to appeal should be refused. That submission was not without substance. However, as appears from the foregoing discussion, there appears to be a diversity of approaches in the Common Law Division on a number of issues relating to the operation of the Appeal Panel functions under the Workplace Injury Act. In the circumstances, it is appropriate to grant leave to appeal. The appeal must be dismissed. The appellant must pay the respondent’s costs in this Court.

4. [49]

   LEEMING JA: I agree with Basten JA.

5. [50]

   McCALLUM JA: I agree with Basten JA.