Wright v State of New South Wales

1. [1]

   GLEESON JA: I agree with Stern JA.

2. [2]

   MITCHELMORE JA: I agree with Stern JA.

3. [3]

   STERN JA: In a medical assessment certificate dated 16 August 2022 (the “Medical Assessment Certificate”), given under s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Management Act”), a medical assessor (the “Medical Assessor”) certified that the appellant, Mr Wright, suffered from a whole person impairment of 19% resulting from a psychiatric/psychological injury with a deemed date of 5 December 2018 (the “5 December 2018 Injury”) arising from his employment by the State of New South Wales (the “State”) as a courier driver for the Western Sydney Local Health District. The State sought to appeal that decision but on 7 November 2022, the Appeal Panel of the Personal Injury Commission (respectively the “Appeal Panel” and the “Commission”) confirmed the Medical Assessment Certificate. The primary judge upheld the State’s application for judicial review of the Appeal Panel’s decision: State of New South Wales v Wright [2023] NSWSC 757. Mr Wright now seeks leave to appeal, and to appeal, from that decision.

4. [4]

   The substantive issue raised by these proceedings is whether, as the State successfully contended before the primary judge, the Medical Assessor exceeded his statutory jurisdiction having regard to an estoppel arising from the terms of a Certificate of Determination – Consent Orders (“Certificate of Determination”) of an arbitrator in the then Workers Compensation Commission (now the Commission) dated 6 November 2020. The Certificate of Determination resolved an earlier dispute between Mr Wright and the State as to the State’s liability to make weekly compensation payments, and to pay for medical and related expenses, under the Workers Compensation Act 1987 (NSW) (the “Compensation Act”). The primary judge upheld the State’s contention and found that the Medical Assessor had exceeded his jurisdiction and that the Appeal Panel was thus in error in confirming the Medical Assessment Certificate under s 328(5) of the Management Act. Neither the second or third respondents took part in the proceedings before the primary judge or on appeal.

5. [5]

   The primary judge made the following orders:

6. [6]

   Mr Wright’s application for leave was heard together with the substantive appeal.

7. [7]

   The question of leave can be dealt with briefly. The matters raised in the grounds of appeal involve issues of principle as to the proper construction of consent orders which impact upon Mr Wright’s entitlement to compensation for permanent impairment. In these circumstances, leave to appeal should be granted: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39] (Basten JA, Tobias AJA agreeing).

8. [8]

   For the reasons set out below, however, the appeal should be dismissed. Further, as set out below at [98], in addition to the orders made by the primary judge, an order for remittal should be made in the terms set out at [99] below.

Factual and procedural background

1. [9]

   Mr Wright’s employment with Western Sydney Local Health District commenced in August 2012. During the course of that employment, Mr Wright experienced harassment, bullying and other forms of mistreatment, primarily inflicted by his supervisor. Following an incident on 5 December 2018, Mr Wright ceased work due to psychiatric injury. After receiving treatment, Mr Wright returned to work on 11 February 2019. He worked reduced hours for a period of approximately six weeks but then, he claims, psychologically deteriorated following further negative interactions with his supervisor and other colleagues.

2. [10]

   Mr Wright made a claim against the State under the Compensation Act.

3. [11]

   On 7 September 2020, Mr Wright filed an “Application to Resolve Dispute” (“ARD1”), which, under s 288(1) of the Management Act, referred a dispute to the Commission for determination. That involved completion of a standard form application. Against a list of check boxes under the heading “Matters in Dispute”, the following matters were indicated as being in dispute: “Weekly benefits where liability in dispute” and “Medical expenses (where the amount is more than $9,468.10)”. That reflects claims that Mr Wright had made for compensation under s 33, and for payment of medical expenses under s 60, of the Compensation Act. In the section of ARD1 headed “Injury Details” the date of injury was given as 9 August 2018 and the “Injury Description / Cause of Injury and Death” was described as:

4. [12]

   Immediately following, in a box which was also identified as “Type of Injury”, there was an entry “Aggravation, acceleration or exacerbation or deterioration of disease”, also with a deemed date of 9 August 2018.

5. [13]

   In Annexure A to its reply to ARD1, the State’s insurer provided a list of issues in dispute. This stated:

6. [14]

   On 6 November 2020, under s 294(1) of the Management Act, the Commission issued the Certificate of Determination:

7. [15]

   It is orders 1 and 5 of the Certificate of Determination that are said to give rise to the estoppel, which in turn founds the alleged excess of jurisdiction on the part of the Medical Assessor.

8. [16]

   Senior Counsel for each of Mr Wright and the State on appeal submitted that Annexure A, extracted at [13] above, applied as regards ARD1, as amended by the Certificate of Determination, to include the “additional injury” defined in order 1 of the Certificate of Determination. It necessarily follows that each of the issues identified in Annexure A were in dispute as regards the 5 December 2018 Injury, and as regards the claimed aggravation and exacerbation of that injury described in order 1 of the Certificate of Determination as the “additional injury”.

9. [17]

   On 20 May 2021, Mr Wright’s solicitors wrote to the State’s insurer, advising that Mr Wright was claiming compensation under s 66 of the Compensation Act of $48,670 in respect of a psychiatric injury which occurred on 5 December 2018. By letter of 8 September 2021, the State’s insurer disputed that Mr Wright’s permanent impairment exceeded 15% and thus that he was entitled to compensation having regard to s 65A(3) of the Compensation Act.

10. [18]

    On 7 April 2022 Mr Wright filed a further “Application to Resolve a Dispute” with the Commission (“ARD2”). Again this involved completion of a standard form. In ARD2 the matter in dispute was identified as:

11. [19]

    The “deemed” date of injury was said to be 20 May 2021, the type of injury was said to be “Disease”, the place of injury was said to be “Within the environs of the respondent’s premises” and the “Injury Description / Cause of Injury and Death” was:

12. [20]

    Mr Wright claimed a total whole person impairment percentage of 19% and a total whole person impairment lump sum of $50,260.

13. [21]

    In its reply to ARD2, the State’s insurer contended:

14. [22]

    On 3 May 2022, in response to an email from an employee of the Commission, Mr Wright, through his solicitor, consented to amend the allegation of injury as requested by the State’s insurer. Thus, the Commission used the deemed date of injury of “5 December 2018 – deemed (for the period 20 August 2012 to 5 December 2018)” and Mr Wright agreed to this.

15. [23]

    On 21 June 2022, the dispute was referred by the Commission to the Medical Assessor in the following terms:

16. [24]

    It is common ground that the Referral contained an error in that the date of injury ought to have read 5 December 2018 but that nothing turns on this.

17. [25]

    On 16 August 2022, the Medical Assessor issued the Medical Assessment Certificate under s 325(1) of the Management Act. He identified the details of the matters referred for assessment as:

18. [26]

    In a section headed “History relating to the injury”, the Medical Assessor provided a “Brief history of the incident/onset of symptoms and of subsequent related events” as follows:

19. [27]

    In a subsection headed “Subsequent psychological injury”, it was noted:

20. [28]

    The following was included under a bullet point “Work history including previous work history if relevant”:

21. [29]

    By way of “summary of injuries and diagnoses”, the Medical Assessor wrote:

22. [30]

    Under the heading “Evaluation of permanent impairment”, when asked to indicate “whether there has been any further injury subsequent to the subject work injury”, the Medical Assessor indicated:

23. [31]

    In the section headed “Reasons for assessment”, the Medical Assessor referred to the PIRS table annexed to the Medical Assessment Certificate. This included, against a heading “Employability and Adaptation”, that:

24. [32]

    Mr Wright was assessed as having whole person impairment of 19%. In making this assessment, the Medical Assessor took into account “The provided reports, Mr Wright’s reported history, and mental state examination.” The section headed “Reasons for assessment” also included reference to the following:

    1. (1)

       The discussion in Mr Wright’s statement of the “return-to-work” problems;

    2. (2)

       Associate Professor Robertson, IME psychiatrist, having diagnosed a chronic adjustment disorder in a report dated 28 May 2019;

    3. (3)

       A further report dated 22 July 2020 from Associate Professor Robertson noting Mr Wright’s progress and the major depression diagnosis from the hospital. Associate Professor Robertson’s whole person impairment rating in respect of Mr Wright was the same as Dr Hong’s;

    4. (4)

       A report dated 19 March 2019 from Ms Raj, psychologist, noting adjustment disorder, depression and anxiety and noting the return-to-work problems;

    5. (5)

       A report dated 18 January 2019 from Dr Smith, IME psychiatrist, stating that Mr Wright had symptoms of a “normal emotion [sic] reaction”, that there was no psychiatric diagnosis and that Mr Wright could return to work;

    6. (6)

       Subsequent reports on 18 March and 16 June 2020 from Dr Smith advising that Mr Wright developed an adjustment disorder in 2019 “because he was stuck at home obsessing over what happened at work” and an aggravation of an adjustment disorder during 2019, especially December 2019, “due to decision to relocate position in Liverpool, which required him to reapply for his position and he felt ambushed.” Dr Smith then, on 12 July 2021, provided a whole person impairment of 8%; and

    7. (7)

       The Medical Assessor’s opinion that Mr Wright’s impairment was permanent and fully ascertainable.

25. [33]

    As set out above, the State appealed against the decision of the Medical Assessor on the ground that the Medical Assessment Certificate contained a demonstrable error pursuant to s 327(3)(d) of the Management Act. On 5 October 2022, a delegate of the Commission referred the State’s application to the Appeal Panel.

26. [34]

    The key contention of the State on that appeal was that the Medical Assessor assessed Mr Wright’s permanent impairment without regard to the fact that the Certificate of Determination dated 6 November 2020 was a determination of the Commission, by consent, that Mr Wright’s alleged psychological injury arising from events at work after 5 December 2018 was not compensable. More particularly, the State contended that there was demonstrable error as the Medical Assessor attributed impairment to Mr Wright’s injury on 5 December 2018 that had actually resulted from the “non-compensable” injury subsequent to that date.

27. [35]

    Mr Wright’s key contention before the Appeal Panel was that the Medical Assessor had not erred as he assessed the impairment arising from the injury as referred, being the injury with a deemed date of 5 December 2018 for the period 20 August 2012 to 5 December 2018, and did not assess impairment by reference to the “additional injury”.

28. [36]

    By decision of 7 November 2022, the Appeal Panel, constituted by one member and two medical assessors, determined that there was no demonstrable error in the Medical Assessment Certificate and dismissed the State’s application. The Appeal Panel had before it all of the documents that were sent to the Medical Assessor and took those into account in making its determination.

29. [37]

    The Appeal Panel identified (at [10]) that the key issue before it was:

30. [38]

    Ultimately, as was accepted by Senior Counsel for Mr Wright on appeal, the Appeal Panel answered the second, but not the first, of the two questions identified in this paragraph.

31. [39]

    The Appeal Panel found (at [37]) that the Medical Assessor had “correctly assessed the respondent’s permanent impairment resulting from the injury the respondent suffered from the events to which he was subject in his employment with the appellant prior to 5 December 2018”. As to the effect of the Certificate of Determination, the Appeal Panel found (at [39]) that there were two available constructions of the consent orders:

    1. (1)

       That the circumstances that Mr Wright alleged to have occurred after 5 December 2018 did not occur; or

    2. (2)

       Those circumstances did occur but they did not give rise to any injury separate to what the respondent suffered on 5 December 2018.

32. [40]

    The Appeal Panel found (at [39]) that the latter construction should be preferred given that the award was given with respect to the “additional injury alleged” (Appeal Panel’s emphasis) not an award with respect to any claim for compensation which might have been made as a consequence of such alleged injury.

33. [41]

    The Appeal Panel’s reasons for dismissing the State’s appeal included the following:

34. [42]

    It is thus apparent that the Appeal Panel dismissed the appeal for two separate and independent reasons:

    1. (1)

       The ambit of the estoppel arising from the Certificate of Determination was limited to precluding Mr Wright from contending that he sustained an injury “separate to what [he] suffered on 5 December 2018” by reason of events subsequent to that date; and

    2. (2)

       Even if an estoppel precluded Mr Wright from contending that there was any incapacity from an additional injury, whether an additional injury was caused by his employment or that the additional injury was not caused by reasonable action taken by or on behalf of the employer (as provided in s 11A of the Compensation Act):

Primary judge’s key findings

1. [43]

   There was no dispute before the primary judge that the Certificate of Determination could give rise to an estoppel. The issue was as to the ambit of the estoppel, and as to whether the Medical Assessor had exceeded jurisdiction having regard to the estoppel such that the Appeal Panel’s decision suffered from legal error.

2. [44]

   As submitted by Senior Counsel for Mr Wright on appeal, the primary judge expressed the ambit of the estoppel arising from the Certificate of Determination in slightly different terms at different places in his Honour’s judgment: see eg at [22], [40], [45], [51]. However, the key finding in this regard is encapsulated in the primary judge’s reasons (at [40]) as follows:

3. [45]

   After setting out the Appeal Panel’s reasons (at [40]), his Honour said of that paragraph:

4. [46]

   As to this question, the primary judge said:

5. [47]

   It followed that the primary judge found the Medical Assessor had exceeded his statutory jurisdiction by taking into account matters that he was required not to take into account, and the Appeal Panel erred in failing to identify this.

Notice of appeal

1. [48]

   Whilst Mr Wright’s notice of appeal advances six appeal grounds, as submitted by Senior Counsel for Mr Wright during oral submissions, these contentions resolve into two substantive grounds:

   1. (1)

      The primary judge erred in failing to consider that the effect of orders 1 and 5 in the Certificate of Determination could not amount to any more than that interactions with his supervisors, fellow employees and officers of the State, and the perception that his employment was at risk and that he was being bullied, did not give rise to a separate compensable injury by way of aggravation and exacerbation of a psychological condition (ground 2 in the notice of appeal); and

   2. (2)

      The primary judge erred in failing to apply the settled law of causation in workers compensation to exclude an assessment that considered all of the impairment resulting from the accepted injury (ground 5 in the notice of appeal).

2. [49]

   I propose to approach the issues on appeal by reference to these two substantive complaints.

3. [50]

   A third issue was also the subject of oral submissions, namely whether it could be inferred that the Medical Assessor assessed permanent impairment without taking any account of any aggravation and exacerbation of Mr Wright’s injury by reason of work-related issues after 5 December 2018. As this issue may influence the orders made on appeal, notwithstanding that this was not raised in the grounds of appeal, it is considered below.

Legislative Scheme

1. [51]

   The relevant legislative scheme for the purposes of this appeal includes the Compensation Act, the Management Act and the Workers Compensation Regulation 2016 (NSW) (the “2016 Regulation”). Under s 2A of the Compensation Act, the Compensation Act and the Management Act are to be construed together, with the Management Act prevailing in the event of any inconsistency.

2. [52]

   Injury is defined in s 4(a) of the Compensation Act to mean “personal injury arising out of or in the course of employment”, and in s 4(b) of the Compensation Act to include a “disease injury” which means:

3. [53]

   It is immediately apparent that the definition of injury incorporates a requirement that the injury arise out of or in the course of employment. All references to “injury” in the Compensation Act thus incorporate that requirement.

4. [54]

   The centrality of this definition of “injury” is apparent from s 9 of the Compensation Act:

5. [55]

   Section 9A(1) of the Compensation Act then imposes a specific causation requirement:

6. [56]

   Section 11A(1) of the Compensation Act provides:

7. [57]

   Section 15(1) of the Compensation Act provides:

8. [58]

   Section 33 of the Compensation Act provides for payment of weekly compensation where “total or partial incapacity for work results from an injury”.

9. [59]

   Section 60 of the Compensation Act provides that an employer is liable to pay for certain medical and other expenses where they are reasonably necessary “as a result of an injury received by a worker”.

10. [60]

    Section 65A(3) of the Compensation Act relevantly provides that no compensation is payable in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the psychological injury is at least 15%. The note to s 65A(3) provides that “If more than one psychological injury arises out of the same incident, section 322 of the [Management Act] requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.”

11. [61]

    Division 3 of Pt 4 of the Management Act sets out the process for the determination of disputes about workers compensation claims. Section 288 relevantly provides:

12. [62]

    If a dispute is determined by the Commission, s 294 of the Management Act provides that the Commission must, as soon as practicable after the determination of the dispute, issue the parties to the dispute with a certificate as to the determination, attaching a brief statement setting out the Commission’s reasons for the determination.

13. [63]

    Part 7 of the Management Act provides a framework for the referral of medical disputes for medical assessment. Section 321(1) of the Management Act provides:

14. [64]

    “Medical dispute” is defined in s 319 of the Management Act as meaning a dispute between a claimant and the person on whom a claim is made about any of the following matters: the worker’s condition: s 319(a), the worker’s fitness for employment: s 319(b), the degree of permanent impairment of the worker as a result of an injury: s 319(c), whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality and the extent of that proportion: s 319(d), the nature and extent of loss of hearing suffered by a worker: s 319(e), whether impairment is permanent: s 319(f), and whether the degree of permanent impairment of the injured worker is fully ascertainable: s 319(g). As held in Skates v Hills Industries Ltd [2021] NSWCA 142 at [30] (Basten JA, Leeming JA agreeing) and [47] (Leeming JA), it is the medical dispute between the parties that is referred for assessment. The jurisdiction of the medical assessor is thus constrained by the ambit of the medical dispute referred for assessment: Scone Race Club Ltd v Cottom [2024] NSWCA 34 at [53] (Basten AJA, Gleeson and Mitchelmore JJA agreeing).

15. [65]

    Section 321A of the Management Act concerns the referral of a medical dispute concerning permanent impairment. It relevantly provides:

16. [66]

    There are no regulations of relevance to the issues on appeal.

17. [67]

    Section 322 of the Management Act relevantly provides:

18. [68]

    Section 325(1) of the Management Act provides that the medical assessor to whom a dispute is referred is to give a medical assessment certificate as to the matters referred for assessment. Section 325(2) of the Management Act sets out the form and contents of a medical assessment certificate as follows:

19. [69]

    Section 327(1) of the Management Act provides that a party to a medical dispute may appeal against a medical assessment under Pt 7, but only in respect of a ground of appeal provided for under s 327(3) of the Management Act, which relevantly includes:

20. [70]

    Section 328 of the Management Act sets out the procedure on appeal. Section 328(1) provides that an appeal against a medical assessment is to be heard by an appeal panel constituted by two medical assessors and one member of the Workers Compensation Division of the Commission. Section 328(2) provides that an appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made. Pursuant to s 328(5) of the Management Act, the appeal panel may confirm the certificate of assessment or may revoke that certificate and issue a new certificate as to the matters concerned.

Consideration

1. [71]

   The first of the substantive issues on appeal is whether the primary judge erred as to the proper construction of the Certificate of Determination, and thus as to the ambit of the estoppel.

2. [72]

   The essence of Mr Wright’s contention can be simply stated. He contends that, on their proper construction, orders 1 and 5 of the Certificate of Determination precluded Mr Wright contending that after 5 December 2018 he suffered aggravation and exacerbation of his psychological or psychiatric injury by reason of the claimed conduct of his employer and his perceptions thereof (“Post 5 December 2018 Work-related Issues”) so as to constitute an injury within s 9(1) of the Compensation Act. However, it did not preclude Mr Wright from contending:

   1. (1)

      That after 5 December 2018, he suffered from aggravation and exacerbation of his injury by reason of Post 5 December 2018 Work-related Issues; and

   2. (2)

      That that aggravation and exacerbation resulted from, or was materially contributed to by, the psychological or psychiatric injury that he suffered in the period up to 5 December 2018 and thus could be taken into account in assessing the permanent impairment resulting from that injury.

3. [73]

   Mr Wright contends that this necessarily flows from the following passage from the judgment of McColl JA (Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [186]:

4. [74]

   Mr Wright submits that the matter “necessarily decided” by the Certificate of Determination was whether the aggravation and exacerbation of his psychological or psychiatric injury as a result of Post 5 December 2018 Work-related Issues itself constituted injury for which compensation was payable under the Compensation Act. Mr Wright contends that the Certificate of Determination did not necessarily decide whether he suffered from an aggravation and exacerbation of his psychological or psychiatric injury by reason of Post 5 December 2018 Work-related Issues, nor did it necessarily decide whether any such aggravation and exacerbation itself resulted from, or was materially contributed to by, the 5 December 2018 Injury.

5. [75]

   Thus, Mr Wright contends the primary judge erred in his Honour’s conclusion as to the ambit of the estoppel arising from the Certificate of Determination.

6. [76]

   In considering these contentions, the starting point is the language of the Certificate of Determination. The natural meaning of the language the parties used in orders 1 and 5 is that Mr Wright and the State agreed that Mr Wright was not entitled to payments under the Compensation Act in respect of his claimed aggravation and exacerbation of his psychological injury by reason of Post 5 December 2018 Work-related Issues. That flows from the clear terms of order 5, agreeing that there should be an award for the State in respect of the additional injury as alleged and specified in order 1. The “additional injury” alleged and specified in order 1 was a further aggravation and exacerbation of Mr Wright’s psychological condition by reason of Post 5 December 2018 Work-related Issues. On their face, those two paragraphs indicate that Mr Wright and the State agreed that Mr Wright was not entitled to compensation under the Compensation Act in respect of the claimed aggravation and exacerbation of his psychological condition by reason of Post 5 December 2018 Work-related Issues.

7. [77]

   That construction of the orders is supported by the ambit of the dispute between the parties which was resolved by the Certificate of Determination. As is apparent from consideration of ARD1 and Annexure A to the State’s reply to ARD1, the dispute, at that time, was as to Mr Wright’s entitlement to weekly compensation and payment of medical and related expenses under the Compensation Act in respect of his claimed injury or injuries, including as regards what fell within the description of what was alleged and specified as the “additional injury” (as set out at [11]-[12] above). Resolution of this dispute required an assessment of, or agreement as to, whether or not Mr Wright was entitled to compensation under the Compensation Act in respect of those matters.

8. [78]

   As regards Mr Wright’s claim for weekly compensation, that, in turn, directed attention to s 33 of the Compensation Act. The question under s 33 is as to whether total or partial incapacity for work “results from an injury” as defined in the Compensation Act. That test would be satisfied as regards the aggravation and exacerbation of his psychological injury, alleged and specified as the “additional injury” in order 1 of the Certificate of Determination, if the alleged incapacity for work was, as a matter of causation, incapacity that resulted from the 5 December 2018 Injury on the principles that Mr Wright relies upon on appeal derived from State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003 (“Oakley”) and Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (“Johnson”).

9. [79]

   Thus, the agreement as reflected in the Certificate of Determination as a whole, including the specific agreement as to weekly compensation in order 2, the agreement that there should be an award in favour of the State in respect of any allegation of incapacity beyond 7 November 2019 in order 3, the agreement in respect of medical and hospital expenses in order 4 and the agreement in order 5 that there should be an award for the State in respect of the “additional injury alleged and specified in Order 1”, should be construed as reflecting agreement between the parties that Mr Wright could not claim under the Compensation Act in respect of the claimed aggravation and exacerbation of his psychological condition resulting from Post 5 December 2018 Work-related Issues.

10. [80]

    I would thus reject Mr Wright’s contention as to the proper construction of the Certificate of Determination, and of the estoppel arising therefrom. As the primary judge found (at [40]):

11. [81]

    Mr Wright’s contention that the primary judge erred as to the proper construction of the Certificate of Determination should be rejected. It necessarily follows that the Appeal Panel erred in their construction of the Certificate of Determination, and of the ambit of the estoppel arising therefrom.

12. [82]

    Grounds 1, 2 and 3 of the notice of appeal should be dismissed.

13. [83]

    Mr Wright contends that the primary judge erred in finding that, by reason of the estoppel arising from the Certificate of Determination, the Medical Assessor was not entitled to have regard to aggravation and exacerbation of his psychological or psychiatric injury alleged to have been caused by Post 5 December 2018 Work-related Issues. Rather, Mr Wright contends, relying on well-established principles of causation deriving from Oakley and Johnson, that such aggravation and exacerbation can be taken into account in considering the extent of his impairment resulting from the 5 December 2018 Injury if the aggravation and exacerbation itself was caused, or contributed to, by that earlier injury.

14. [84]

    Senior Counsel for Mr Wright submitted, during the hearing of the appeal, that his grounds of appeal relying upon causation could succeed even if his contention as to construction of the Certificate of Determination failed.

15. [85]

    Ultimately, however, on what I have found to be the proper construction of the Certificate of Determination, it would not have been open to the Medical Assessor to find that any aggravation and exacerbation of Mr Wright’s injury, resulting from Post 5 December 2018 Work-related Issues, was itself caused or contributed to by his 5 December 2018 Injury. That issue was resolved by orders 1 and 5 of the Certificate of Determination. Thus, principles of causation simply had no further work to do.

16. [86]

    It necessarily follows that the Appeal Panel erred in finding that, irrespective of the breadth of the estoppel arising from the Certificate of Determination, the Medical Assessor would have been required to apply common law principles of causation to determine whether any aggravation and exacerbation of Mr Wright’s psychological condition arising from Post 5 December 2018 Work-related Issues was caused or contributed to by the 5 December 2018 Injury. Having regard to the agreement reached in the Certificate of Determination, the issue whether that aggravation and exacerbation was caused or contributed to by the 5 December 2018 Injury was no longer in dispute between Mr Wright and the State.

17. [87]

    Mr Wright’s contention that the primary judge erred in this regard should thus be rejected. Grounds 4, 5 and 6 of the notice of appeal should be dismissed.

18. [88]

    Notwithstanding my conclusions as set out above, it would have been open to the Medical Assessor to make an assessment of Mr Wright’s permanent impairment having regard to aggravation and exacerbation of Mr Wright’s injury after 5 December 2018 provided that he did not include in that assessment any aggravation and exacerbation which resulted from Post 5 December 2018 Work-related Issues. Had the Medical Assessor done so, there would be no demonstrable error in his decision. That may go to the relief that should be ordered, and whether declaration (2), as made by the primary judge, should be upheld, irrespective of the legal errors which I have found affected the analysis of the Appeal Panel.

19. [89]

    As set out above, the Appeal Panel did not in fact address this issue.

20. [90]

    The primary judge did address this issue and found (at [55]) that the Medical Assessor accepted Mr Wright’s evidence that his psychological condition was aggravated by Post 5 December 2018 Work-related Issues (see above at [46]). Thus, his Honour found that it was not open to the Appeal Panel to find that the Medical Assessor had given effect to the estoppel arising from the Certificate of Determination: at [60].

21. [91]

    I have separately considered whether the Medical Assessor in fact excluded from consideration aggravation and exacerbation of Mr Wright’s injury resulting from Post 5 December 2018 Work-related Issues. The following matters support the conclusion that he did not.

22. [92]

    First, the Medical Assessor never suggested that he excluded such matters from his assessment. Rather, on the face of the Medical Assessment Certificate, he has approached his task as being to assess all impairment flowing from the 5 December 2018 Injury. Were it not for the Certificate of Determination, that would necessarily have been the correct approach for the Medical Assessor to take.

23. [93]

    Second, it would not naturally be expected that a medical assessor would be alive to the principles going to construction of consent orders, and estoppel, which were ventilated before the Appeal Panel and the primary judge and which have been fully ventilated on appeal. Without some clear guidance as to such matters, it would not be expected that the Medical Assessor would have appreciated the parameters of his task having regard to the terms of the Certificate of Determination.

24. [94]

    Third, the exchange of emails leading to agreement as to the deemed date of injury would not have alerted the Medical Assessor to the parameters of his task. Those emails focussed upon the date of injury, but did not identify the proper construction of the Certificate of Determination or the ambit of the estoppel arising therefrom.

25. [95]

    Fourth, and most importantly, the Medical Assessment Certificate includes reference, in a number of places, to Mr Wright’s Post 5 December 2018 Work-related Issues. The Medical Assessor identified, for example, that after Mr Wright’s return to work in 2019 he “psychologically deteriorated” and that there were “further problems when he went back to work.” The Medical Assessor also found that on account of ongoing harassment by Mr Wright’s manager “eventually he had to stop work.” These passages strongly suggest that the Medical Assessor assessed Mr Wright’s permanent impairment including having regard to the impact that those Post 5 December 2018 Work-related Issues had on Mr Wright’s psychiatric and psychological condition.

26. [96]

    In these circumstances, I agree with the primary judge that the Medical Assessment Certificate contains a demonstrable error. The declaratory relief ordered by the primary judge is appropriate.

Conclusion

1. [97]

   It follows that this appeal must be dismissed.

2. [98]

   Before the primary judge it was common ground that the appropriate relief, if the State’s claim was successful, was to set aside the decision of the Appeal Panel and remit the matter to the President of the Commission for referral to an appeal panel differently constituted: at [5] and [59]. His Honour did not, however, make an order remitting the matter to the President of the Commission for referral to a differently constituted appeal panel.

3. [99]

   In my judgment, in addition to the declaratory relief granted by the primary judge, an order should be made remitting the matter to the President of the Commission, either for referral of Mr Wright’s claim of permanent impairment arising out of the 5 December 2018 Injury for further medical assessment under s 329 of the Management Act (see s 327(6) of the Management Act), or for referral of the State’s appeal against the decision of the Medical Assessor to a differently constituted appeal panel for hearing under s 328 of the Management Act (noting that the powers of the Appeal Panel, in subs (5), are to confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the degree of Mr Wright’s permanent impairment resulting from the 5 December 2018 Injury). In the latter case, having regard to the terms of declaration (2) made by the primary judge, it would be incumbent upon any freshly constituted appeal panel to revoke the Medical Assessor’s certificate and then to conduct its own assessment of Mr Wright’s permanent impairment and reflect that assessment in a new certificate of assessment.

4. [100]

   In both instances any further consideration of Mr Wright’s claim should be made consistently with the reasons of the Court.

5. [101]

   If no order as to remittal is made, as Senior Counsel for the State agreed during oral submissions, Mr Wright has not had his claim for permanent impairment assessed in the way in which it should be under the Management Act.

6. [102]

   The State submitted that if it were successful in resisting Mr Wright’s appeal there should be an order that each party bear its own costs. That order should be made.

7. [103]

   Thus, the orders I propose are:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

   3. (3)

      In addition to the orders made by Basten AJ, the State of New South Wales’ appeal against the decision of the Medical Assessor dated 16 August 2022 is remitted to the President of the Personal Injury Commission either:

   4. (4)

      Each party is to bear its own costs of the appeal.