New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales

1. [1]

   This is a claim for an order in the nature of certiorari against the Medical Appeal Panel of the Workers Compensation Commission of New South Wales. The decision in respect of which the order is sought is a decision of the Appeal Panel given on 18 June 2013.

Legislative framework

1. [2]

   So that the course of events and the arguments can be readily understood it is necessary, first, to set out the relevant parts of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act").

Background

1. [3]

   The decision of the Appeal Panel arises out of a claim by the Third Defendant arising from Post Traumatic Stress Disorder which he suffered from his employment in the Police Force.

2. [4]

   The Third Defendant joined the Police Force on 29 July 1988 when he was 19 years of age. Although he initially simply worked at Surry Hills Police Station from October 1994 he was involved in specialist squads relating to drugs and organised crime where he acted as an undercover agent. It was particularly while working undercover that he had some experiences that have given rise to the condition from which it is now accepted he suffers. The worst incident was on 10 February 1998 where two masked criminals held a gun to his head, seriously assaulted him and robbed him.

3. [5]

   He ceased work on 2 September 2010 and was medically discharged from the Police Force with chronic PTSD in October 2011.

4. [6]

   On 9 March 2012 a report of Dr Peter Anderson, a psychiatrist retained by the Third Defendant's solicitors, assessed the Third Defendant as having a whole person impairment of 17%. Section 151H Workers Compensation Act 1987 prohibits the payment of any damages to a worker unless he is determined to have a permanent impairment of at least 15%.

5. [7]

   On 14 June 2012 he was assessed by Dr Graham George who found him to have a whole person impairment of 10%. It appears to be this assessment which gave rise to the medical dispute.

6. [8]

   On 8 August 2012 the Third Defendant filed an Application to Resolve a Dispute in the Workers Compensation Commission.

Procedural history

1. [9]

   On 4 September 2012 he was referred for an assessment of permanent impairment to an approved medical specialist being Dr Norman Rose. On 1 November 2012 Dr Rose issued a Medical Assessment Certificate (MAC) where he assessed the whole person impairment of the Third Defendant to be 5%.

2. [10]

   On 29 November 2012 an application to appeal against Dr Rose's assessment was filed by the Third Defendant. The prescribed form requires the applicant to identify which of the four grounds stipulated in s 327 of the 1998 Act are relied upon. The Third Defendant identified the ground in subs(3)(d), namely, that the MAC contains a demonstrable error. Section 4.2 of the application said this:

3. [11]

   The Third Defendant indicated that submissions were attached. Those submissions in relation to s 327(3)(d) said:

4. [12]

   On 23 January 2013 the Registrar's delegate decided that the Third Defendant satisfied an appeal ground in s 327(3)(d) of the 1998 Act and referred the matter to the Medical Appeal Panel.

5. [13]

   On 28 February 2013 the Appeal Panel issued its preliminary review. It said this:

6. [14]

   On 1 April 2013 the Appeal Panel issued a further preliminary review. The Panel indicated that it had formed the preliminary view that the evidence showed that Dr Rose may have erred in respect of the classes assigned for the PIRS categories for Travel and Employability. On that basis it sought further submissions from the Plaintiff and the Third Defendant.

7. [15]

   On 5 April 2013 the Plaintiff wrote seeking clarification of what the Appeal Panel was proposing to consider on the appeal. The letter said in part:

8. [16]

   The Appeal Panel advised on 9 April 2013 that they would be reassessing the additional categories as well.

The Appeal Panel's reasons and determination

1. [17]

   The Appeal Panel issued its determination and reasons on 18 June 2013. To understand the arguments in the matter it is necessary to set out parts of the Statement of Reasons:

Grounds of appeal

1. [18]

   The Plaintiff's grounds of appeal, set out in the Further Amended Summons filed in court on 4 December 2013, are as follows:

2. [19]

   The Plaintiff directed argument principally to two grounds being grounds (b) and (d). It was apparent, and the Plaintiff argued, that if ground (b) was upheld it would follow that grounds (a) and (c) would also be upheld.

Ground (b)

1. [20]

   The Plaintiff submitted that the Appeal Panel was not entitled to direct the fresh examination by the Third Defendant, unless it found that there was demonstrable error in the Certificate. Such demonstrable error must be found without regard to further or extrinsic evidence.

2. [21]

   In Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Basten JA said:

3. [22]

   In Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366 Senior Counsel for the applicant, who was endeavouring to show demonstrable error in the Assessor's Certificate, argued that an error could be "demonstrable" even though evidence beyond the Certificate was required to establish it. Mason P, with whom McColl and Bell JJA agreed said:

4. [23]

   In Haroun v Rail Corporation NSW [2008] NSWSC 160 Harrison AsJ said:

5. [24]

   As in Pitsonis, the Third Defendant in this case wishes to assert that Dr Rose failed to obtain and record an adequate history and failed to place him in the appropriate classes for the two PIRS categories identified in the appeal submissions. The Panel, in any event, went beyond that to deal with two categories not so identified. In Pitsonis Mason P noted that the judge at first instance there (Malpass AsJ) said (Pitsonis v Registrar of the Workers Compensation Commission [2007] NSWSC 50):

6. [25]

   Mason P said that the Associate Judge was correct in those conclusions. He went on to say:

7. [26]

   The Third Defendant submitted that paragraph 65 of the Appeal Panel's reasons showed that the Panel found demonstrable error in the Certificate as they asserted. The error was said to be "readily available to the Panel from an examination of the MAC". Any statements earlier in the reasons, such as those in paragraphs 11, 14 and 45, must be seen only as the Panel's preliminary view. Paragraph 65 should be taken to be the final opinion of the Panel.

8. [27]

   Whilst also acknowledging some inconsistency between that statement and earlier paragraphs of the reasons the Third Defendant submitted that a hyper-critical approach to the Panel's reasons should not be taken. The Third Defendant pointed to what was said in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]:

9. [28]

   The Third Defendant submitted also that s 324(3) was wide enough to permit the Panel to refer the Third Defendant for assessment by Dr Gertler even though they had only, at that stage, expressed a preliminary view about the correctness of the MAC. This was particularly because the subsection refers to "in the course of an appeal or further assessment under this Part".

10. [29]

    I do not agree that a reading of paragraph 65 of the reasons shows that the Panel found demonstrable error from an examination of the MAC. In examining the reasons I bear in mind Handley AJA's admonition in Bojko.

11. [30]

    In paragraph 11 of its reasons under the heading "Preliminary Review" the Panel said that it considered that the Third Defendant "could have qualified for Class 3". In paragraph 14 in the same section it said that given the Panel's doubts in respect of Classes 2 and 3 as ascribed by Dr Rose the Panel considered that the best approach would be a re-examination of the worker. Again, at paragraph 45 of its Reasons the Panel said that the Classes assigned by Dr Rose "possibly constituted a demonstrable error" and that that required a re-examination in order to satisfy the Panel as to the appropriate assessment. Paragraph 34 expressed similar sentiments.

12. [31]

    The course of events related earlier and the reasons themselves show that it was at the preliminary stage where the Panel had some doubts (but had not otherwise reached a determination) about the classes assigned by Dr Rose that the examination with Dr Gertler was arranged. At that stage the Panel had no power to refer the Third Defendant for assessment because error had not been found.

13. [32]

    The Appeal Panel's function was either to confirm the MAC or to revoke it and issue a new certificate - s 328(5). On one view, that subsection read together with s 329 might be thought to preclude the Panel making a referral at any stage for further assessment even from one of its own members. That would be an unfortunate result and would not sit easily with s 324(3) which appears to contemplate an assessment "in the course of an appeal". The Guidelines issued pursuant to s 376 of the 1998 Act would also appear to authorise such a further assessment (assuming paragraph 45 thereof is within power).

14. [33]

    However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.

15. [34]

    In any event, paragraph 65 made clear that the reason demonstrable error was readily available from an examination of the MAC was "because the respective assignments of classes...were not justifiable on the basis of all the evidence before the" Panel. That evidence included Dr Gertler's report. It is clear, therefore, that error was not found "contained" in the MAC. The point is emphasised in paragraph 66 where it said that the Panel based its assessments on Dr Gertler's findings.

16. [35]

    What the Panel did was to obtain a further assessment from Dr Gertler in order to see whether Dr Rose was correct in the classes he assigned and, therefore, whether there was demonstrable error. They had no power to take that course. Indeed, it may be that the Plaintiff has in fact established a jurisdictional error in that regard although the Plaintiff does not claim other than that there is an error on the face of the record, being the reasons themselves. Such an error on the face of the record is established.

17. [36]

    Despite what appeared in the Third Defendant's written submissions the Third Defendant did not ultimately maintain that jurisdictional error needed to be shown. Section 69(3) Supreme Court Act 1970 makes it clear that it is sufficient to show an error on the face of the record to obtain a writ in the nature of certiorari. That error need not be jurisdictional error: ASIC v Farley [2001] NSWSC 326; (20012) 51 NSWLR 494 at [9].

18. [37]

    It follows that, in taking into account Dr Gertler's findings and assessment, the further error identified in ground (c) of the Summons is established. Further support for that conclusion is found in Mason P's approval in Pitsonis at [53] of what Malpass AsJ concluded at [30] of his judgment and in NSW Police Force v Derek Fleming [2010] NSWSC 216 at [25] and [33].

19. [38]

    Similarly, for similar reasons to those given by the Panel for rejecting the fresh evidence constituted by the Third Defendant's statement, the Panel should also have rejected the material in Dr Gertler's report. The error identified in ground (a) is made out.

Ground (d)

1. [39]

   The Third Defendant largely adopted the reasons of the Appeal Panel in support of his submission that the Panel was able to consider the two other PIRS than the ones specifically referred to in the submissions attached to the application to appeal. The argument may be briefly stated.

2. [40]

   Section 328(2) limits the appeal to the grounds of appeal on which the appeal is made. In the first instance the words "grounds of appeal" must be a reference back to the words "grounds for appeal" in s 327. Since the Appeal Panel limited its reasons to a consideration of the ground in s 327(3)(d) it did not fall into error when considering the two other PIRS categories. There is nothing to suggest that a party is bound by what is contained in the submissions attached to the application to appeal. Further, s 324(3) expressly extends the assessment process to the course of an appeal. It was within the power of the Appeal Panel to refer the Third Defendant for assessment by Dr Gertler.

3. [41]

   The 1998 Act was amended in 2010 by the Workplace Compensation Legislation Amendment Act 2010 following the Court of Appeal's decision in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. Prior to the amendments s 328(2) read:

4. [42]

   In that case McColl JA (with whom Mason P agreed) said:

5. [43]

   Giles JA, whilst agreeing with McColl JA added the following:

6. [44]

   The Appeal Panel relied on what McColl JA said at [99] - see paragraph 49 of the reasons.

7. [45]

   It seems to me that there are two errors in the approach to s 328(2) taken by both the Appeal Panel and the Third Defendant. The first error is to identify the words "grounds of appeal" in s 328(2) with the words "grounds for appeal" in s 327 see paragraph 43 of the reasons. The use of the different preposition may be thought to be significant.

8. [46]

   To the extent that the Appeal Panel considered that s 328(2) was only limiting an applicant to any one of the grounds of appeal contained in s 327(3) by its use of the words "grounds of appeal" I consider that such a construction of the section is wrong. It overlooks the words which follow -"on which the appeal is made".

9. [47]

   The Third Defendant did not argue for so wide a construction of s 328(2). The Third Defendant submitted that he had appealed on the basis of ground (d) and, therefore, that the Appeal Panel was entitled to consider all aspects of demonstrable error in the certificate. I do not agree with that submission.

10. [48]

    I note that s 328(2) provides that the WorkCover Guidelines can provide for the procedure on an appeal. The Guidelines in fact make such provision. Guideline 42 provides:

11. [49]

    The approved form of application to appeal against a decision of an approved medical specialist contains the notation that is set out in paragraph [10] above. Noting that the warning on the form appears to give a discretion where submissions are not filed with the application whereas the Guidelines do not, it is apparent that the submissions are, nevertheless, an integral part of the identification of the grounds of appeal. In that way if a party identifies in respect of a ground (d) appeal particular demonstrable errors, the appeal should be regarded as being confined to those matters. The grounds of appeal taken with the submissions will constitute "the grounds of appeal on which the appeal is made". In my opinion, that result is most consistent with what the amendments in 2010 must be taken to have intended.

12. [50]

    The Third Defendant submitted further that the purpose of the amendments to the 1998 Act following Siddik was to confine the Appeal Panel to the particular ground set out in s 327(3) nominated in the application. The Third Defendant said that the issue in Siddik was unlike the issue in the present case because in Siddik the Appeal Panel found error on a different ground from those that had been specified in the application.

13. [51]

    I do not agree that the issue in Siddik was different. The appeal relied on grounds (a), (c) and (d) - see at [4] per Giles JA and [21] per McColl JA. The Appeal Panel rejected those grounds but found a different error that fell within ground (c) but had not been identified by the appellant - see at [5] and [25] -[26].

14. [52]

    In any event the present case must be determined on a proper construction of s 328(2). In my opinion the phrase "the grounds of appeal on which the appeal is made" is directed to greater particularity than simply categorising the appeal as being within one or more of the grounds in s 327(3). That is the purpose of requiring "submissions...detailing the grounds of the appeal.

15. [53]

    In my opinion error has been demonstrated in relation to this ground of appeal.

Residual discretion and orders

1. [54]

   The Third Defendant submitted that even if error was found I should exercise the residual discretion available in matters governed by s 69 Supreme Court Act and refuse relief. The reason for this was said to be because, when the Appeal Panel gave notice on 28 February 2013 ([13] above) that it was referring the Third Defendant for further assessment the Plaintiff did not object to this course.

2. [55]

   I do not consider that this is any reason to refuse relief. I do not consider, for example, that it is more likely than not that if the Plaintiff had objected to the further assessment the Appeal Panel would have upheld the objection. Notwithstanding what the Plaintiff said in its letter of 5 April 2013 ([15] above) about the width of the appeal the Appeal Panel proceeded on the course it had embarked upon. Notwithstanding the Plaintiff's Further Submissions to the Panel following its indication that it would proceed to consider the additional categories the Panel made its determination which involved considering the extra categories and taking into account what Dr Gertler said about those categories.

3. [56]

   The further issue remains, error having been found, of what orders should now be made. Certainly, an order in the nature of certiorari should be made quashing the Appeal Panel's determination. The Plaintiff then seeks that an order be made reinstating the MAC of Dr Rose or, alternatively, remitting the matter to the Panel to decide the appeal according to law, that is, in accordance with these reasons.

4. [57]

   The Third Defendant's preferred position was that the matter should be remitted to the Appeal Panel. The Plaintiff's initial view was that I should make an order reinstating Dr Rose's Certificate but the Plaintiff subsequently submitted that it would not oppose the matter being remitted to the Appeal Panel.

5. [58]

   The Third Defendant was always entitled to apply to appeal. He did so on certain grounds. The Appeal Panel should have decided the appeal on those grounds. The present proceedings have been brought to put the matter back into the position it should have been in if the Appeal Panel had acted according to law.

6. [59]

   If I simply make an order that Dr Rose's MAC be reinstated there are two possibilities. One is that the Third Defendant will not be entitled to appeal from it out of time. That would be unfair to the Third Defendant. The other is that the Third Defendant would seek, and be granted leave to, appeal out of time but would appeal on grounds other than those previously raised. That would be unfair to the Plaintiff.

7. [60]

   The better course is that the Appeal Panel (consisting of members other than comprised the Appeal Panel whose decision I have quashed) should now perform the task it ought to have performed when the appeal first came before it.

8. [61]

   Accordingly, I make the following orders: