Wentworth Community Housing Limited v Brennan

1. [1]

   HER HONOUR: This is a judicial review of a decision made by a delegate of the Registrar of the Workers Compensation Commission of New South Wales dated 21 March 2018, pursuant to s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”).

2. [2]

   By summons filed 19 April 2018, the plaintiff seeks firstly, an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision of the second defendant dated 21 March 2018 made pursuant to s 327(4) of the WIM Act be quashed or otherwise set aside; secondly, an order pursuant to s 69 of the Supreme Court Act that the second defendant refer the application to appeal the decision of the Approved Medical Specialist (“AMS”) dated 9 January 2018 to an Appeal Panel pursuant to s 327 of the WIM Act for determination in accordance with law; and finally, further and/or in the alternative, the matter be remitted by the second defendant to the Workers Compensation Commission for referral to an Appeal Panel constituted under s 328 of the WIM Act for determination in accordance with law. It should be noted that all the relief sought is from the decision of the delegate of the Registrar, and not the AMS.

3. [3]

   The plaintiff is Wentworth Community Housing Limited (“Wentworth”). The first defendant is Stephanie Brennan. The second defendant is the Registrar of the Workers Compensation Commission of New South Wales (“Registrar”). The Registrar has filed a submitting appearance.

4. [4]

   There are eight grounds of judicial review that can be addressed in four groups. They are, firstly, additional relevant information (Grounds 1 and 3); secondly, incorrect criteria (Ground 4); thirdly, demonstrable error (Grounds 5 and 6); and lastly, demonstrable error of the Registrar (Grounds 7 and 8).

Background

1. [5]

   The first defendant was born in July 1961. She is currently 57 years of age.

2. [6]

   On 20 July 2010, the first defendant commenced employment with Wentworth as a manager on a full-time basis, working 35 hours per week.

3. [7]

   By 26 January 2013, as the result of years of alleged harassment and ill-treatment in the workplace by other managers at Wentworth, the first defendant suffered a psychological injury by way of aggravated Bipolar Affective Disorder Type 2. She claimed compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW). Pursuant to s 65A(1) of the Workers Compensation Act, no compensation is payable in respect of permanent impairment that results from a secondary psychological injury. There is no issue that the first defendant suffered a primary psychological injury. Pursuant to s 65A(3) of the Workers Compensation Act, no compensation is payable in respect of a permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from that injury is at least 15%.

4. [8]

   On 1 December 2017, consent orders were entered in the Workers Compensation Commission for referral to an AMS for assessment of permanent impairment for injury pursuant to s 4(b)(ii) of the Workers Compensation Act. The assessment was for aggravation of a constitutional Bipolar Affective Disorder Type 2 with a deemed date of injury on 26 January 2013.

5. [9]

   On 7 November 2017, a delegate of the Registrar of the Workers Compensation Commission referred the assessment to a psychiatrist, Dr John J Baker, as the designated AMS.

6. [10]

   On 9 January 2018, the Workers Compensation Commission issued a Medical Assessment Certificate (“MAC”) that assessed the first defendant’s Whole Person Impairment (“WPI”) as 24%.

7. [11]

   On 7 February 2018, Wentworth made an application to appeal against the decision of an AMS (“the application to appeal”).

8. [12]

   On 21 March 2018, the Registrar issued the decision refusing an appeal against the AMS pursuant to s 327(4) of the WIM Act.

The statutory scheme

1. [13]

   It is convenient that I briefly outline the relevant provisions of the statutory scheme.

2. [14]

   Section 4 of the Workers Compensation Act defines “injury”. It reads:

3. [15]

   Section 65A of the Workers Compensation Act contains special provisions for psychological and psychiatric injury. It relevantly reads:

4. [16]

   Section 66 of the Workers Compensation Act provides as follows:

5. [17]

   Chapter 7, Part 7 of the WIM Act provides for medical assessment, including the assessment of the degree of WPI by an AMS and, by way of review, appeal panels. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 per Basten JA at [1].

6. [18]

   An AMS is appointed under the WIM Act to deal with medical disputes. These are defined in s 319 of the Act to mean:

7. [19]

   Section 321 of the WIM Act provides for the referral of a medical dispute for assessment. It reads:

8. [20]

   Section 322 of the WIM Act relates to the assessment of impairment. It reads:

9. [21]

   Section 325 of the WIM Act relates to the MAC. It reads:

10. [22]

    Section 326 of the WIM Act concerns medical assessments. It reads:

11. [23]

    Appeals against medical assessments are governed by ss 327 and 328 of the WIM Act. Section 327 reads:

12. [24]

    Section 328 reads:

The decision of the AMS dated 9 January 2018

1. [25]

   On 20 December 2017, the AMS examined the first defendant. The material provided to the AMS was the amended application to resolve a dispute (“the application”), together with attached documents. These documents included the statement of the first defendant dated 11 August 2017. Wentworth provided a reply dated 7 November 2017 (“the reply”), which had attached the surveillance reports dated 27 August 2015 and 11 October 2016, and social media investigation reports dated 13 July 2015 and 12 September 2016.

2. [26]

   On 9 January 2018, a MAC was issued.

3. [27]

   The matters that were referred to the AMS for assessment were identified at [1] of the MAC as follows:

4. [28]

   In relation to the evidence, the AMS stated at [2] of the MAC:

5. [29]

   The AMS at [10(c)] referred to the statement of the first defendant and noted the following:

6. [30]

   In the first defendant’s latter statement dated 11 August 2018, she responded to the surveillance and media reports. The first defendant stated at [54] to [74]:

7. [31]

   There are some medical and contemporaneous clinical notes that refer to the first defendant’s ultra-marathon training and running that were before the AMS. These are:

   1. (1)

      A psychological functioning assessment dated 26 November 2013. It states at [1.12.3]:

   2. (2)

      Two GPs’ contemporaneous entries in clinical notes dated 18 April 2013 and 2 May 2013. They are as follows:

8. [32]

   The AMS did not refer to any of the evidence outlined above. Nor did he refer to the evidence contained in the surveillance and social media reports in his decision.

9. [33]

   It was the AMS’s opinion that the first defendant suffered from a severe aggravation of her Bipolar Affective Disorder Type 2, depressive phase. The AMS noted that the defendant had been receiving ongoing psychiatric and psychological treatment from her medical team at the time of his assessment. She had required the use of psychiatric medication as well as psychological treatment to stabilise her work-related injury. She reported no substantive improvement in her depressed psychiatric condition at the time of this assessment.

10. [34]

    The AMS stated that the first defendant’s psychiatric symptoms remained persistent and ongoing. In his opinion, her condition had reached maximum medical improvement, and it was unlikely that her condition would improve with or without medical treatment.

11. [35]

    In making this assessment, the AMS took into account the clinical interview and mental state examination he performed, as well as the assessment using the Psychiatric Impairment Rating Scales (“PIRS”).

12. [36]

    In Ferguson v State of New South Wales & Ors [2017] NSWSC 887, Campbell J explained PIRS at [14]:

13. [37]

    Table 11.1 sets out the relevant class descriptors. It reads:

14. [38]

    In accordance with PIRS rating scale, the AMS assessed the first defendant’s total WPI at 24% WPI.

The application to appeal

1. [39]

   On 7 February 2018, Wentworth lodged an application to appeal the decision of the AMS on the following three grounds: firstly, the availability of additional relevant information, being evidence that was not available to Wentworth before the medical assessment and that could not reasonably have been obtained by Wentworth before that medical assessment (s 327(3)(b)); secondly, the assessment was made on the basis of incorrect criteria (s 327(3)(c)); and finally, the MAC contains a demonstrable error (s 327(3)(d)). It was submitted that the AMS failed to take into account evidence attached to the amended application (being the first defendant’s statement dated 11 August 2017) and attached to the reply (being the surveillance and the social media investigation reports) (Aff, Elder 6 June 2018, Ex RNE 1, Tab 5, [2]).

2. [40]

   Wentworth addressed these three grounds in its written submissions attached to the application to appeal (Aff, Elder 6 June 2018, Ex RNE 1, Tab 5, [2]).

3. [41]

   Wentworth submitted that the AMS erred with regard to his assessment of impairment. In particular, that:

   1. (1)

      The AMS failed to take into account the evidence enclosed in the application to resolve a dispute and the reply to that application;

   2. (2)

      The AMS based his opinion solely on the subjective report of symptoms made by first defendant during the examination; and

   3. (3)

      The AMS failed to compare the history obtained from the first defendant to the evidence annexed to the application to resolve a dispute and the reply.

4. [42]

   Wentworth also submitted that the AMS erred in providing an assessment in accordance with the AMS referral, which provided a brief of evidence to consider in making the WPI assessment.

5. [43]

   In regards to the availability of additional evidence, Wentworth submitted that the further evidence relied upon was not available before the medical assessment, and could not have reasonably been obtained before the medical assessment took place. These reports and their contents post date the MAC and commencement of proceedings, and were obtained in the investigation of the accuracy of the AMS’s history and circumstances. These were the primary subject of the appeal.

6. [44]

   Wentworth further submitted that the evidence relied upon by the AMS, being solely the first defendant’s version of events, was inconsistent with investigative evidence attached to the reply for consideration by the AMS. The investigative evidence was not referred to by the AMS in the MAC and appears to have not been considered at the time of the medical assessment. In light of the inconsistency between the AMS’s history and the investigative evidence before the AMS at the time of his findings, further evidence was obtained by Wentworth after the issuing of the MAC. This further evidence is consistent with the investigative evidence annexed to the reply, and on that basis warranted an appeal.

7. [45]

   The next eight paragraphs of Wentworth’s submissions addressed the alleged discrepancies within the AMS’s findings in relation to the PIRS rating scale and the conflicting evidence between the surveillance and social media reports and [54] to [74] of the first defendant’s latter affidavit where she responds to the contents of those reports.

The notice of opposition

1. [46]

   On 2 March 2018, the first defendant lodged a notice of opposition to appeal against the decision of the AMS. She submitted that the MAC does not disclose the application of incorrect criteria and/or demonstrable error and objected to fresh evidence being adduced by Wentworth. So far as the further evidence is concerned, the first defendant alleged that the new evidence was obtained in the investigation of the accuracy of the AMS’s history and circumstances which are the primary subject of the appeal. The first defendant submitted that the AMS obtained a generally consistent account of her history.

2. [47]

   The first defendant objected to the fresh evidence being adduced in relation to the accuracy of the AMS’s history on the basis that it could have reasonably been obtained by Wentworth before the AMS’s medical assessment. Wentworth had already obtained a similar investigation report which was attached to the reply. As an AMS is required to consider all the documents attached to an application (but need not refer to them), it is reasonable to assume that the AMS considered all the documents in both the amended application and reply. These would have included the previously-obtained reports that were attached. It is therefore not necessary for the two investigation reports to have been obtained, and they should not be allowed or admitted as evidence in the appeal proceedings. Proof that the AMS considered all these documents is on page 10 of the MAC under the heading “The Facts on Which the Assessment is Based”, where the AMS says the assessment was based on the first defendant’s history and the provided documentation.

3. [48]

   The first defendant referred to the decisions of Petrovic v BC Serv No 14 Pty Limited [2007] NSWSC 1156 and Robertson v Registrar of the Workers Compensation Commission & Beny’s Joinery Pty Ltd [2008] NSWSC 918. The first defendant submitted that, in line with these two authorities, Wentworth’s appeal of the AMS’s assessment, including the fresh evidence adduced by Wentworth, does not contain “additional relevant information” as required by s 327(3)(b) of the WIM Act. This is because it is not “information of a medical kind or which was directly related to a decision required to be made by the AMS”.

The decision of the Registrar dated 21 March 2018

1. [49]

   On 21 March 2018, the delegate of the Registrar issued his decision.

2. [50]

   The Registrar noted that his role and powers in making his decision are those of a gatekeeper. That fact is not in contention in this judicial review. The Registrar stated that his power is to determine whether, on the facts of the application and any submissions made, at least one of the grounds of appeal specified in subsection (3) has been made out. The Registrar was not satisfied that at least one of the grounds of appeal as specified in s 327(3) had been made out. Accordingly, the appeal was not to proceed.

3. [51]

   Under the heading “Availability of Additional Relevant Information”, the Registrar at [18] to [19] and [21] to [22] of his reasons stated:

4. [52]

   Wentworth submitted that the erroneous finding that the surveillance and social media reports “contained evidence which is broadly consistent with that sought to be relied upon in the appeal” undermines the Registrar’s decision to refuse to allow the appeal to proceed.

Grounds of judicial review

1. [53]

   There are eight grounds of judicial review. These are as follows.

2. [54]

   Grounds 1 to 3 are that the Registrar’s decision was tainted by jurisdictional error or error on the face of the record as, in not allowing an appeal, the Registrar erred in the construction of "additional relevant information" for the purposes of s 327(3)(b) of the WIM Act. It was not correct to state in the decision that the AMS:

   1. (1)

      At [18] had regard to material placed before him and that the evidence was “broadly consistent with that sought to be relied upon in the appeal”. The AMS had not referred to and had not considered in the MAC the surveillance and social media reports originally provided by Wentworth and attached to its reply;

   2. (2)

      At [20] had “evidence before him of a substantially similar nature”, as the AMS had not referred to and considered in the MAC the surveillance and social media reports originally provided by Wentworth and attached to its reply; and

   3. (3)

      As the additional relevant information sought to be adduced by Wentworth was not available and could not be obtained prior to AMS’s medical assessment, the additional relevant information was obtained to benefit the Appeal Panel and establish continuity of the first defendant’s conduct that contradicted the complaints made by the first defendant to the AMS.

3. [55]

   Ground 4 is that the Registrar’s decision was tainted by jurisdictional error or error on the face of the record, as the Registrar at [27] misconstrued the submissions of Wentworth. Wentworth submitted that the AMS made his assessment on the basis of incorrect criteria for the purposes of s 327(3)(c) of the WIM Act, as the surveillance and social media reports contradicted the information relied on by the AMS in completing the PIRS. By not referring to or considering the contradictory information, the AMS applied incorrect criteria to the assessment of permanent impairment. The failure of the Registrar to allow an appeal based on incorrect criteria for the purposes of s 327(3)(c) of the WIM Act resulted in procedural unfairness and denial of justice.

4. [56]

   Grounds 5 and 6 are that the Registrar erred in dealing with demonstrable error under s 327(3)(d) of the WIM Act, for failing to have regard to relevant material, specifically, the surveillance and social media reports attached to the reply, and the statement of the first defendant dated 11 August 2017 and attached to the amended application.

5. [57]

   Grounds 7 and 8 are based upon the Registrar failing to accept the submission that the AMS did not have regard to the statement of the first defendant dated 11 August 2017. It is apparent on reading the decision that the AMS did not have regard to the statement of the first defendant dated 11 August 2017. This statement contained concessions as to social and fitness activities, including participating in ultra runs and staying in Manly every alternative weekend with her partner. These concessions were not reported in the MAC. This allows an inference to be drawn (and a finding on the balance of probabilities) that the statement dated 11 August 2017 was not considered. As the concessions would have been relevant to the assessment of impairment under the PIRS, there was a demonstrable error under s 327(3)(d) of the WIM Act.

6. [58]

   It is convenient that I deal with judicial grounds 5 and 6 at the outset. If necessary, they will then be followed by grounds 7, 8 and 4, and then 1 to 3.

7. [59]

   It is important to note that the proceedings in this Court are not and cannot be by way of appeal from the decision of the Registrar. Wentworth seeks relief from that decision under s 69 of the Supreme Court Act: see Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (“Craig”).

Grounds 5 and 6 – jurisdictional error and demonstrable error concerning the surveillance and social media reports

1. [60]

   Grounds 5 and 6 concern the Registrar’s error in dealing with the surveillance and social media reports. Ground 5 is that the Registrar made a jurisdictional error or error on the face of the record by failing to accept Wentworth’s submission that the MAC did not refer to, and therefore did not consider, the relevant information originally provided by Wentworth and attached to its reply. Specifically, these were the surveillance reports dated 27 August 2015 and 11 October 2016, and the social media reports dated 13 July 2015 and 12 September 2016. Ground 6 is that the Registrar, in failing to refer to the surveillance and social media reports, made a demonstrable error under s 327(3)(d) of the WIM Act. These reports were relevant when considering the first defendant’s degree of impairment, as it contradicted her complaints to the AMS.

2. [61]

   Counsel for Wentworth submitted that it is plain and apparent upon reading the AMS’s reasons that the AMS did not have regard to the surveillance and social media reports attached to the reply. Nor did he have regard to the first defendant’s statement dated 11 August 2017, which responded to those reports. The surveillance and social media reports contained evidence that contradicted the subjective complaints made by the first defendant to the AMS for the purposes of categorisation under PIRS. The reports contained relevant material with respect to the assessment of self-care and personal hygiene (Table 11.1); social and recreational activities (Table 11.2); travel (Table 3); social functioning (Table 11.4) and possibly employability (Table 11.6).

3. [62]

   The first defendant was assessed as being Class 3 for self-care and personal hygiene, social and recreational activities and social functioning. This is moderate impairment. The AMS relied solely on the subjective complaints of the first defendant that she was unable to engage in social activities or go shopping. However, the surveillance and social media reports plainly contradicted these complaints. The MAC contained a discussion of material attached to the application and reply, including medical reports and the statement of the first defendant dated 22 April 2013, but failed to refer to her statement dated 11 August 2017. Nor did it refer to the factual investigation reports and social media reports that were also attached to the application and reply.

4. [63]

   Wentworth submitted that it should therefore be inferred (and can be accepted on the balance of probabilities, as per s 140 of the Evidence Act 1995 (NSW) and Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244) that the AMS did not have regard to the surveillance and social media reports as attached to the reply, as their contents were not mentioned at all in the MAC, including in the assessment of Tables 11.1-11.4 of the PIRS. This was a demonstrable error by the AMS pursuant to s 327(3)(d) of the WIM Act. That error was repeated by the Registrar in refusing the appeal under s 327(3)(d) of the WIM Act, as the Registrar assumed the AMS “examined the documents referred to him by the Commission”. This assumption was an error, as the evaluative process leads to the inevitable conclusion the AMS did not have regard to the surveillance and social media investigation reports. This erroneous assumption means that the decision was in error, as it ignored relevant material (being the absence of reference to the surveillance reports and social media investigation reports by the AMS), was misdirected as to law as to “demonstrable error” and was legally unreasonable: see Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 13; Minister for Immigration v SZFW [2018] HCA 30; Buck v Bone (1976) 1365 CLR 110.

5. [64]

   The first defendant submitted that the AMS considered the matters necessary to make an assessment of impairment, and arrived at a conclusion which was consistent with the statements of the first defendant. This consideration can be found in the application as well as the history taken by the AMS on the day of examination. It does not follow that the AMS has “not considered” such matters in the overall assessment merely because an AMS does not refer specifically to particular matters. This is not readily apparent from a reading of the text of the decision.

6. [65]

   The first defendant disputes the assertion that the decision of Registrar contains a “demonstrable error” for failing to decide that the absence of a reference in the AMS decision to the surveillance and social media reports that were before the AMS was itself a demonstrable error. The material referred to was not “plainly contradictory” as submitted, but was indeed consistent with the history given by the first defendant to other medical examiners throughout the long history of the claim. Such rehabilitation efforts were never denied by the first defendant.

7. [66]

   The concept of jurisdictional error was explained in Minister for Immigration v Youssef (2001) 206 CLR 323; [2001] HCA 30 per McHugh, Gummow and Hayne JJ at 351:

8. [67]

   In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, the High Court held that the decision of Craig does not provide a rigid taxonomy of jurisdictional error, and that the instances of error identified in Craig are only examples.

9. [68]

   The meaning of “demonstrable error” has been discussed in cases such as Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, where Hoeben J said at [39]:

10. [69]

    The Registrar addressed the issue of demonstrable error at [29] to [32], where he stated:

11. [70]

    In its submissions, Wentworth referred to Tattersall v Registrar of the Workers Compensation Commission of NSW [2007] NSWSC 453 (“Tattersall”), where Adams J stated at [12] to [14], [18] and [19]:

12. [71]

    In Tattersall, the AMS had failed to consider the report of a psychologist dated 12 July 2014, a report which was both important and significant. While there was a dispute as to whether the report of the psychologist was before the AMS, the AMS had not referred to it in the MAC. Even if the report was available, the apparent failure of the Registrar to consider this issue when raised as a ground of appeal constituted an error of law. Accordingly, the failure to allow the appeal was an error for the purposes of s 327(3)(d) of the WIM Act.

13. [72]

    Circumstances in which the decision maker fails to take relevant material into account may constitute a demonstrable error. The issue was considered in the case of De Gelder v Rodger (No 2) [2014] NSWSC 1355 (“De Gelder (No 2)”). In that case, the plaintiff sought judicial review in this Court of the decision of a medical review panel on the grounds that it failed to take into account a relevant consideration, including a letter from a chiropractor. In his decision, Hamill J helpfully stated at [73] and [77]-[79]:

14. [73]

    While De Gelder (No 2) concerns the decision of an appeal panel, it is equally applicable to the decision of the AMS in these proceedings.

15. [74]

    In this current judicial review, it is fair to say that aside from the general statements in [2] and [9] of his decision, the AMS did not specifically refer to either the surveillance reports dated 27 August 2015 and 11 October 2016, or the social media reports dated 13 July 2015 and 12 September 2016. Nor has the AMS addressed Wentworth’s submissions on the inconsistent matters raised in the reports under the ‘History Relating to the Injury’ heading of the MAC. Wentworth had submitted that the material shown in these reports was inconsistent with what the first defendant stated in her initial statement. In her supplementary statement, the first defendant provided her response as to what was contained in media posts and surveillance. The AMS also did not refer to either the first defendant’s supplementary or latter statement in his reasoning. It appears that the AMS overlooked these reports, or failed to consider the relevant and significant material provided by the plaintiff.

16. [75]

    In addressing this issue, the Registrar stated that the documents contained in the referral to the AMS were the reply and the attachments to the reply, including the surveillance and social media reports. The Registrar then stated that it is apparent on the face of the MAC that the AMS had regard to the material placed before him, including these reports. According to the Registrar, those reports contain evidence which is broadly consistent with that sought to be relied upon in the appeal. The Registrar did not address Wentworth’s complaint that the first defendant’s evidence was inconsistent with the other evidence, and this constituted a demonstrable error.

17. [76]

    It is my view that the Registrar erred when he stated that the AMS had regard to the material placed before him and that the evidence was broadly consistent with that sought to be relied upon in the appeal, in circumstances where the AMS had not referred to the discrepancy between the first defendant’s evidence and the surveillance and social media reports. The Registrar offered an explanation for, rather than a consideration of, the underpinning error, which concerned whether the AMS had either failed to consider the material shown in the media posts and surveillance reports, or simply overlooked them. In my opinion, it was an error of law on the face of the record for the Registrar to not have considered the submission that the AMS had either not considered or had overlooked these reports. Accordingly, the Registrar misconstrued his statutory task under s 327(3)(d) of the WIM Act, and made a jurisdictional error.

18. [77]

    As the Registrar’s decision is to be set aside, it is not necessary to deal with the remaining grounds of judicial review.

Conclusion

1. [78]

   The result is that the decision of the Registrar dated 21 March 2018 should be quashed. These proceedings are remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law.

2. [79]

   There is no order as to costs.