Broadspectrum (Australia) Pty Ltd v Wills

This is an application under Supreme Court Act 1970 (NSW), s 69 for judicial review of a decision of an Appeal Panel of the Workers Compensation Commission determining an appeal under Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act), s 327. That appeal was from an assessment of an approved medical specialist (AMS) as to the degree of permanent impairment of the first defendant worker, Ms Wills, arising from psychological injuries suffered as the result of a work incident on 3 May 2014 which involved a sexual assault. The AMS assessed Ms Wills’ level of permanent impairment at 22% using the psychiatric impairment rating scale (PIRS) mandated by the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) (the Guidelines). The AMS also found that she suffered from pre-existing psychiatric injuries which directly contributed to her current whole person impairment (Appeal Panel’s Reasons, [45]). Having concluded for the purposes of WIM Act, s 323(1) that it would be “difficult or costly” to determine the extent of the percentage deduction for those pre-existing conditions, the AMS assumed, in accordance with s 323(2), that the extent of that deduction should be 10%, resulting in an overall assessment of whole person impairment of 20%.

The plaintiff employer appealed from that assessment under WIM Act, s 327(3) on the grounds in paras (c) and (d), namely that the assessment was made on incorrect data and that the medical assessment certificate contained “demonstrable” error (as to which see Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [76]-[87] per Gleeson JA, Macfarlan JA and Barrett AJA agreeing). It did not challenge the AMS’s assessment of Ms Wills’ whole person impairment or finding that her pre-existing psychiatric conditions contributed to that impairment. By its decision dated 23 January 2019, the Appeal Panel allowed the appeal, holding that the AMS had erred in determining the percentage deduction under s 323(1) (Reasons [48]). That conclusion required that the Appeal Panel undertake that assessment. In doing so its approved medical specialist members were required to exercise their clinical judgment in assessing the percentage deduction to be made (Guidelines, para 1.6; WIM Act, ss 322(1)). The appeal was conducted on the basis of the evidence and material before the AMS, and the Appeal Panel did not examine or interview the first defendant.

The Appeal Panel assessed the proportion of Ms Wills’ current permanent impairment that was due to her pre-existing conditions to be 20% or 1/5th. To give effect to that conclusion, the Appeal Panel revoked the AMS’s medical certificate and issued a new certificate dated 21 January 2019, assessing Ms Wills’ whole person impairment as a result of the 3 May 2014 work injury to be 18%. By WIM Act, s 326(1) that certified assessment is conclusively presumed to be correct as to the degree of her permanent impairment and the amount of permanent impairment compensation to which she is entitled is calculated by reference to that percentage (Workers Compensation Act 1987 (NSW), ss 65A(3), 66). Accordingly the Appeal Panel’s exercise of power under WIM Act, s 328(5) has legal effect and may be the subject of relief under Supreme Court Act, s 69: Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149 at 159; [1996] HCA 44.

The plaintiff employer seeks to set aside the Appeal Panel’s certificate on two grounds. The first is said to involve an error of law on the face of the record, here the Appeal Panel’s reasons (see Supreme Court Act, s 69(4)), and the second a jurisdictional error constituted by a failure to provide adequate reasons.

Those grounds as formulated are:

The Appeal Panel’s reasons commence with an extract of the AMS’s description of the work injury and a summary of Ms Wills’ medical history leading to that event. They then summarise the medical evidence concerning her pre-existing conditions, as well as the AMS’s findings in relation to those conditions.

The work incident occurred on 3 May 2014 at the Regional Processing Centre on Manus Island. Ms Wills was a case manager. A refugee who was to be returned to Iran harassed her, making many sexually suggestive remarks and inappropriately touching her several times. It is not necessary here to set out the detail of what occurred. It was not the first time that Ms Wills had been subjected to some form of sexual assault. That occasion was when she was 10 or 11 years of age whilst living in New Zealand. The perpetrator was an elderly male who resided near a friend’s house. In 1987 Ms Wills moved to Brisbane where she lived in a relationship with the father of her two children until that relationship broke down. Later she obtained a degree in social work and in 2006 commenced work with Queensland Health in a residential facility at Moreton Bay, managing psycho-geriatric dementia patients. In 2007 she was sexually assaulted and, despite personal and medical issues, continued to work in that position until 2012 when she became emotionally distressed after two men with histories of paedophilia were assigned to her management. She subsequently was off work in 2012 for between three and four months. In November 2013 Ms Wills resigned from Queensland Health to take up the position on Manus Island, initially with The Salvation Army and later the plaintiff.

In April 2013 Ms Wills’ mental condition was assessed by a consulting psychiatrist, Dr Jetkinoff, for the purpose of a claim she made against her superannuation fund while working for Queensland Health. The Appeal Panel’s reasons included the following extract from his report which found that at the time of assessment she was not suffering from any psychological condition (Reasons [27], [28]):

Dr Jetkinoff noted that at the time of his report Ms Wills was taking the sedative Neulactil and Lovan, an antidepressant. She was also seeing her psychiatrist once a month, and a psychologist approximately once a fortnight.

In September 2013, and prior to her commencing work at Manus Island in January 2014, Ms Willis was assessed by Dr McMurray as “being suited to her placement and assignment”, she having disclosed that she was taking Lovan “for depression” (Reasons [30]). There was also evidence before the AMS from Ms Wills’ daughter who described her mother’s pre-injury state as being “outgoing, independent and confident” (Reasons [41]).

Following the incident in May 2014 Ms Wills’ condition deteriorated and resulted in four occasions of hospitalisation. Her medico-legal assessments included the following as accurately summarised by the AMS and acknowledged and recorded by the Appeal Panel at Reasons [36]-[40]:

The AMS found that Ms Wills suffered from “persisting difficulties that have manifested in different psychopathological states over time” and identified those states as “chronic or subacute PTSD and other symptomatology including depressive illness and atypical eating disorder” (Reasons [45], [47]). The Appeal Panel agreed that those conditions were “pre-existing” and to be taken into account in undertaking the assessment called for by s 323(1). There was no issue before the Appeal Panel as to the correctness of the AMS’s finding that those conditions had contributed to some extent to Ms Wills’ current whole person impairment of 22% (Reasons [23], [32]).

Thus, the employer’s appeal was directed solely to the AMS’s assessment of the percentage deduction to be made for the proportion of her current permanent impairment due to the pre-existing conditions. In making that assessment, the AMS had concluded that the “extent of the deduction is difficult or costly to determine so in applying the provisions of s 323(2) I assess the deductible proportion as one tenth” (Reasons [45]). The Appeal Panel found that the AMS erred in so concluding (Reasons [48]) and that conclusion is not challenged on this application.

The Panel rejected as not being “borne out by the evidence” the AMS’s finding that there was “conflicting information” as to Ms Wills’ psychological condition at the time she undertook employment with the plaintiff employer (Reasons [second 49]). It found that the medical evidence of Dr McMurray and another “unidentified psychologist” and the “lay” evidence established that at the time Ms Wills suffered the injury on 3 May 2014 “she was largely asymptomatic” (Reasons [52]).

At the same time the Panel noted that, notwithstanding her assertion that she was taking Lovan for premenstrual tension, a questionnaire that Ms Wills had completed in October 2013, and the evidence of Dr Jetkinoff, indicated that she was taking the Lovan “whilst in the care of her psychologist and psychiatrist”, and “as a result of her pre-existing psychiatric condition(s)”. The Panel continued “Be that as it may, there is no evidence that Ms Wills was clinically symptomatic at the time she suffered the subject injury” (Reasons [52]). The introductory words to this statement are relied on by the plaintiff as an indication that the Appeal Panel did not regard the fact that the pre-existing conditions were being effectively managed by treatment as relevant to the enquiry as to the extent to which they contributed to the current impairment.

The Appeal Panel summarised Ms Wills’ psychiatric history as follows:

The Panel then turned to the assessment of the percentage deduction that should be made for “any proportion of the [current] impairment that is due to any… pre-existing condition” (s 323(1)). It noted that the pre-existing condition “does not have to be symptomatic and may contribute to the level of impairment caused by the subject injury even if it were asymptomatic” (Reasons [58]). The reference here is to the approach adopted by the Court of Appeal in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [30]-[32] (Giles JA, Mason P and Powell JA agreeing) and Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [42]-[43] (Basten JA, McColl JA and Handley AJA agreeing).

Next, the Panel undertook the exercise described in the Guidelines at para 11.10 which provides:

Having done so the Panel declined to apply that paragraph of the Guidelines because “it would produce an anomalous assessment contrary to the [relevant] principles” (Reasons [62]). These “principles” describe the interpretation of s 323(1) adopted in Vitaz at [42]-[43]. As Giles JA earlier emphasised in Matthew Hall at [32] “it does not matter that the pre-existing condition was asymptomatic, and if the loss [permanent impairment] is to some extent due to the pre-existing condition there must be deduction of the deductible proportion for that loss [permanent impairment]. But it is necessary that the pre-existing condition was a contributing factor causing the loss. And, of course, it is necessary that there was a pre-existing condition”. The “anomalous assessment” arises because the methodology suggested by the Guidelines calls for an assessment of the “injured worker’s pre-injury level of functioning” to calculate a “pre-existing WPI%”. That percentage is then to be subtracted from the “injured worker’s current level of WPI%”. The Panel concluded that in this case the former assessment would be “nil” with the consequence that Ms Wills’ would be entitled to the full assessment of 22% “without deduction” (Reasons [60]). The Panel’s proceeding on this basis is not challenged as involving any reviewable error in its understanding of the task required by s 323(1).

The Appeal Panel undertook its assessment of the percentage deduction to be allowed for the proportion of the current impairment attributable to the pre-existing conditions. In relation to that assessment the plaintiff employer submitted that a deduction of at least 50% should be made (Reasons [63]), whereas Ms Wills submitted that the AMS’s outcome of 10% should be confirmed (Reasons [32]). The Panel’s assessment was as follows (Reasons [63] and [64]):

The plaintiff’s argument as summarised in oral submissions was as follows:

It was submitted that when addressing that question of causation the pre-existing condition was “properly not viewed as being asymptomatic [but rather] as being managed by medication”; that it was wrong to evaluate “the contribution of the pre-existing condition by reference to it being clinically asymptomatic”; and that any absence of symptoms before the injury had to be considered in the context where the pre-existing conditions were in remission or under a substantial course of treatment. If that approach was not taken it was submitted that “the treatment creates a false baseline for the causal inquiry”.

The short answer to these contentions, as is submitted on behalf of Ms Wills, is that the Appeal Panel did not address the question of the causal significance of her pre-existing conditions solely on the basis that they were asymptomatic at the time of her work injury. It certainly did take the fact that they were asymptomatic at that time into account, as is made clear at Reasons [64], and as the employer’s argument emphasises. However the Panel also considered other indications of the causal significance of those conditions notwithstanding that they were asymptomatic. At Reasons [58] it was acknowledged that was a matter which had to be addressed. The Panel then declined to apply the methodology described in the Guidelines because it would produce an “anomalous assessment” that did not reflect the AMS’s finding that Ms Wills’ pre-existing conditions had contributed to her current impairment (esp Reasons [45], [51], [60], [62]).

Having done so, in assessing the “extent” of that contribution the Panel took account of the “severity and chronicity of [Ms Wills’] relapsing and remitting” psychiatric illness “which the history shows to have been associated with recurrent periods of psychosocial and vocational impairment” (Reasons [54], [64]). This analysis does not have regard to any differences in Ms Wills’ medical or other treatment over the years, or to her adherence to any treatment regimes, which in either case might have explained particular periods or occasions of relapse or recurrence. However it was not submitted that the Appeal Panel should have undertaken such an analysis. In that state of affairs the Panel was justified in proceeding on the basis that it did, implicitly and necessarily acknowledging that notwithstanding the treatment or other factors resulting in the pre-existing conditions being asymptomatic at the time of the work injury, Ms Wills’ pre-existing conditions had over time and notwithstanding earlier but unspecified treatment regimes, resulted in recurrent periods of psychosocial and vocational impairment. Accordingly the premise of this asserted ground for relief is not made out.

The Appeal Panel has an obligation to give reasons for its decision: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284. Its function, as was the function of the Medical Panel in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], is “to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise”. Its function was not to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions or to opine on the correctness of other opinions on the relevant medical question.

Against this background the statement of reasons for the Panel’s opinion on the relevant medical question was required to (at [55]):

The medical question for the Appeal Panel called for an assessment of the extent to which Ms Wills’ current whole person impairment was due to her pre-existing psychiatric illness and for that assessment to be expressed as a percentage of that impairment.

Such an assessment necessarily called for a broad evaluation of the extent to which the work injury and the pre-existing conditions contributed to Ms Wills’ overall impairment in circumstances where the happening or existence of each was a “necessary” condition for the resulting impairment. That assessment involved the weighing of competing considerations as to the causal significance of each, requiring the exercise of clinical judgment about matters as to which expert medical minds might reasonably differ.

The Appeal Panel sufficiently identified those competing considerations at Reasons [64], and as the discussion of the Panel’s reasons appearing above shows the Panel did not in its analysis disregard the fact that Ms Wills’ pre-existing condition was under medication and asymptomatic at the time of her work injury. Accordingly the reasons were not inadequate in the respect contended.

In the result I make the following orders: