Nicol v Macquarie University

1. [1]

   HER HONOUR: This is a judicial review from a decision of the Medical Appeal Panel of the Workers Compensation Commission of NSW.

2. [2]

   The plaintiff is Gregory William Nicol. (Mr Nicol). The first defendant is Macquarie University. The second defendant is the Workers Compensation Commission of NSW. The third defendant is the Medical Appeal Panel of the Workers Compensation Commission of NSW constituted by Arbitrator John Wynyard and Approved Medical Specialists Robert Gertler and Brian Parsonage. (the Appeal Panel). The plaintiff relied upon the affidavit of his solicitor Stephen James Walker dated 14 September 2017 and his court book. The first defendant relied upon the affidavit of Casey Bray dated 28 September 2017 and its court books volumes (2).

3. [3]

   By summons filed 26 July 2017, Mr Nicol seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision of the Appeal Panel issued by the Workers Compensation Commission of NSW on 26 May 2017 is void and of no effect; and secondly, an order setting aside the decision and the statement of reasons for decision of the Appeal Panel dated 26 May 2017.

Background

1. [4]

   In January 2005, Mr Nicol commenced employment with Macquarie University as a return to work coordinator.

2. [5]

   On 6 May 2006, during the course of his employment with Macquarie University, Mr Nicol suffered a psychiatric and/or psychological injury. From 11 May 2006 to 13 October 2006, Mr Nicol was certified unfit for work. In October 2006, Mr Nicol’s employment was terminated.

3. [6]

   On 23 October 2006, Mr Nicol commenced employment with Cambridge Insurance in the role of a claims assessor.

4. [7]

   On 19 December 2006, the Workers Compensation Commission issued a certificate of determination determining that Macquarie University was to pay weekly compensation to Mr Nicol until 23 October 2006, when he commenced employment with Cambridge Insurance.

5. [8]

   From 11 April 2007 to 11 June 2007, Mr Nicol was certified unfit for work due to the recurrence of treatment resistant major depression with anxious features. From 27 September 2007 to 28 September 2007, he was certified fit for suitable duties. From 4 October 2007 to 30 November 2007, Mr Nicol was certified unfit for work due to a recurrence of treatment resistance major depression with anxious features.

6. [9]

   On 26 May 2016, Mr Nicol lodged an application to resolve a dispute together with medical reports, a statement by him and supporting documentation. No submissions accompanied the application. On 17 June 2016, Macquarie University lodged a reply together with medical reports, witness statements and other documentation. No submissions accompanied the reply. Four applications to admit late documents were made. There is voluminous material.

7. [10]

   There is a dispute between the parties as to the level of whole person impairment (“WPI”). On 29 September 2009 by consent, an arbitrator made orders remitting the matter to the registrar. On 16 November 2016, Mr Nicole lodged an application to appeal against the decision of the Approved Medical Specialist (“AMS”). On 12 December 2016, the delegate of the registrar referred the matter to Dr Ash Takyar, the AMS seeking an assessment of WPI caused by the psychological/psychiatric disorder deemed to have occurred in October 2006 for nature and conditions of the employment from January 2005 to October 2006.

8. [11]

   On 19 October 2016, the AMS issued a Medical Assessment Certificate (MAC) under s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) certifying that Mr Nicol suffered from a 50% WPI from his psychiatric injury. The AMS made no apportionment in respect of any pre-existing or subsequent condition, and made no apportionment under s 323 of the WIM Act.

9. [12]

   Macquarie University appealed the decision of the AMS relying on s 327(3)(c) (incorrect criteria) and s 327(3)(d) (demonstrable error) of the WIM Act.

10. [13]

    On 12 December 2016, the Registrar (the gate keeper) was satisfied that at least one of the grounds of appeal is made out in accordance with s 327(4)) of the WIM Act and referred the appeal to the Appeal Panel for review of the MAC assessment.

11. [14]

    On 26 May 2017, the Appeal Panel revoked the AMS’s MAC and issued a new certificate of assessment assessing Mr Nicol’s WPI at 8%.

The statutory scheme

1. [15]

   I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the Workers Compensation Act 1987 (NSW), the worker must show an injury which is defined in s 4 as follows:

2. [16]

   No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Section 9A(1) reads:

3. [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 at [1] per Basten JA.

4. [18]

   Approved Medical Specialists are appointed under the WIM Act to deal with medical disputes which are defined in s 319 to mean:

5. [19]

   Section 323 provides for the deduction for previous injury or pre-existing condition or abnormality. It reads:

6. [20]

   Section 325 relates to the medical assessment certificate. It reads:

7. [21]

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

8. [22]

   Section 327 relevantly reads:

9. [23]

   Section 328 relevantly reads:

10. [24]

    Section 328(2) confines the grounds of appeal which an Appeal Panel may consider, to those pursued by the appellant. Here, the Appeal Panel is confined to whether the assessment was made on the basis of incorrect criteria or there is a demonstrable error.

11. [25]

    Section 331 of the WIM Act required the Appeal Panel to apply the Guidelines in conducting its review. Section 331 relevantly reads:

The Guidelines

1. [26]

   The parties referred to a number of relevant provisions in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016) (“the Guidelines”).

2. [27]

   Clause 1.6 provides “a basic summary of some key principles of the permanent impairment assessment.” They include:

3. [28]

   Clause 11.10 of the Guidelines refer to pre-existing conditions. It provides:

4. [29]

   Clause 11.11 of the Guidelines sets out the Psychiatric Impairment Rating Scale (PIRS):

5. [30]

   Clause 11.12 of the Guidelines provides:

Psychiatric Impairment Rating Scale (PIRS)

1. [31]

   So far as the PIRS rating scale is concerned, in Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (“Ferguson”), Campbell J explained at [14]:

The decision of the AMS

1. [32]

   On 13 October 2016, AMS took the history of Mr Nicol’s injury, summarised his present treatment and symptoms, general health, work history, social activities/ADL conducted a medical examination and recorded his findings on examination, gave brief comments regarding other medical opinions and findings and completed the PIRS rating form. While the AMS detailed Mr Nicol’s medications, I have omitted them there. As previously stated, there was voluminous material lodged by both parties, but no submissions accompanied the application or the reply.

History

1. [33]

   The plaintiff provided the following history to the AMS at [4]. I shall summarise it as follows.

2. [34]

   In October 2006, Mr Nicol commenced working at Macquarie University as a “return to work coordinator”. After two months, Mr Nicol had implemented new systems and this caused his boss’ attitude towards him to change.

3. [35]

   In May 2006 Mr Nicol said that he got up to go to work but did not leave. He sat on his bed for two hours waiting to muster the energy and his flatmate asked why he had not left. He said that he saw his general practitioner the next day. On 11 May 2006, Mr Nicol ceased work. Two weeks later he attempted to return to work but his manager blocked him and told Mr Nicol that he could not work with him. Mr Nicol told the AMS that Macquarie University told him to have two weeks off and offered him a redundancy. Mr Nicol saw an independent examiner who reported that there was no psychiatric injury and the claim was denied. Mr Nicol told the AMS that he had to work and he moved to Cambridge (now Xchanging) and he began to see a psychiatrist weekly from mid July 2006 while he was working for Xchanging.

4. [36]

   Mr Nicol informed the AMS that his employment was terminated as he had no leave. He would generally take one to two days off per month but would need three months off because of his illness. He said that his next employer, General Electric, were more supportive even though he required one year off during the two years that he worked there. They held his position for him but he felt that he could not return to work because of the trajectory of his illness.

5. [37]

   The AMS recorded Mr Nicol’s present symptoms as:

6. [38]

   Under the findings on mental examination, the AMS stated at [5]:

7. [39]

   The AMS reported at [7] that Mr Nicol presented in a manner that was consistent with the history provided. He presented with evidence of psychomotor agitation, low mood, reduced eye contact, sitting in a slumped posture, withdrawn and mildly malodorous and this appeared to be consistent with the history he provided. The AMS recounted some encounters between Mr Nicol and his boss. In May 2006, Mr Nicol reported a changed in his mental and said that he felt he was no longer able to cope.

8. [40]

   There was conflicting medical opinion received by the AMS, which he summarised under the heading “reasons for assessment”.

9. [41]

   There is medical evidence that does not support Mr Nicol’s claim, namely that of Drs John Roberts and Allan White. These doctors opined that Mr Nicol’s psychiatric injury was not related to his employment with Macquarie University.

10. [42]

    Dr John Roberts, in his report dated 3 August 2006, opined (at 12):

11. [43]

    Dr Allan White stated in his medico legal report dated 9 July 2007:

12. [44]

    Dr Roberts in a later medico legal report dated 11 October 2007, stated (at 10 and 12):

13. [45]

    The medical opinions before the AMS that support Mr Nicol’s psychiatric injury were that of Dr Ben Hanson (Mr Nicol’s treating general practitioner), Dr K Masood Khan (Mr Nicol’s treating psychiatrist), Dr Peter Sternhell (Mr Nicol’s treating psychiatrist), Dr Raymond Tint Way (psychiatrist) and Dr Ben Teoh (psychiatrist).

14. [46]

    The treating psychiatrist, Dr Masood Khan, in his medico legal report dated 23 June 2009, indicated that:

15. [47]

    Dr Khan indicated later on 27 October 2009:

16. [48]

    When Dr Khan retired in May 2013, he referred Mr Nicol to another psychiatrist, Dr Peter Sternhell. When consulting Dr Sternhell, Mr Nicol referred to problems with his immediate manager at Macquarie University where he became depressed for the first time. Dr Sternhell made a diagnosis of severe depression with melancholic features and he was of the opinion that Mr Nicol’s depression which arose while he was working at Macquarie University had never fully remitted.

17. [49]

    On 25 August 2013, the psychiatrist Dr Ben Teoh provided a diagnosis of major depression with a poor prognosis.

18. [50]

    Dr Ben Hanson was Mr Nicol’s treating general practitioner over many years. He has provided WorkCover certificates and provided medical reports. The Appeal Panel covered the reports of Dr Hanson in more detail. I have reproduced all that the AMS had to say about Dr Hanson’s evidence as the Appeal Panel took issue with the AMS’s summation of Dr Hanson’s reports. The AMS’s summation is as follows:

19. [51]

    The AMS reported that on 15 October 2015, Dr Raymond Tint Way (psychiatrist) noted that that there was no prior history of psychiatric illness and included the quote below:

20. [52]

    However, the AMS did not record what Dr Way reported in relation to his following opinion, namely:

21. [53]

    Under the heading “Summary” the AMS stated at [7]:

22. [54]

    Under the heading “Evaluation of Permanent Impairment” the AMS was asked at question at 8(g):

23. [55]

    The AMS answered “Nil”. This statement indicates that the AMS did not consider that Mr Nicol had suffered a subsequent injury at Cambridge.

24. [56]

    Finally, the AMS completed the PIRS rating form, providing the following reasons and Class assessment in relation to each category. I have only reproduced the categories that are the subject to judicial review and will refer to them in more detail under the PIRS ground of judicial review.

25. [57]

    The aggregate score totalled 23 which equates to 50% WPI. On 19 October 2016, the AMS issued a certificate of assessment and assessed Mr Nicol with a total WPI of 50%.

Submissions made to the Registrar and the Appeal Panel

1. [58]

   Macquarie University sought to appeal the MAC on the following grounds:

2. [59]

   Macquarie University made lengthy submissions. It identified three main issues. They are that the AMS:

   1. (1)

      failed to take a correct history of the subsequent psychological injury sustained while Mr Nicol was employed by Cambridge; (failed to take correct history)

   2. (2)

      failed to make a deduction on the assessment of permanent impairment due to the ongoing effects of the subsequent injury sustained while Mr Nicol was employed by Cambridge; (failure to make deduction) and

   3. (3)

      The AMS erred in the assessment of Tables 11.1, 11.3, 11.4 and 11.5 Psychiatric Impairment Rating Scale (PIRS) in relation to the following categories and that the AMS ought to have assessed Mr Nicol as follows:

3. [60]

   At 2.11 to 2.14 and 2.18 to 2.19 Macquarie University submitted:

4. [61]

   Macquarie University referred to the decision in Schofield v Abigroup Limited [2016] NSWSC 954 (“Schofield”), where Fullerton J stated at [33]:

5. [62]

   Schofield concerns a hearing loss or, as it is sometimes known, “boilermaker’s deafness”. The plaintiff worked in different industrial environments in New South Wales between 1957 and 1981. He left New South Wales in 1981 and worked in a number of noisy industrial environments in Queensland, the Northern Territory and Western Australia until 2001.

6. [63]

   Section 17 of the Workers Compensation Act contains special provisions for gradual hearing loss as to who is liable to pay compensation. In Schofield, the issue to be decided was whether the last noisy employer in New South Wales (the defendant) was liable to compensate the worker for impairment to hearing sustained outside New South Wales after the deemed date of injury. Fullerton J held that the defendant’s construction of s 319(c) of the WIM Act as it applied in the context of the Workers Compensation Act was the correct construction. That is, the defendant was liable under s 17(1)(c)(ii) of the worker’s hearing loss that had occurred “in one blow” as at the deemed date of injury of January 1981.

7. [64]

   Fullerton J considered that the worker’s hearing loss was caused by a gradual process predating the deemed date of injury. Therefore, in assessing the degree of permanent impairment as a result of that injury, the AMS was required to make an appropriate adjustment for injury that was the result of the worker’s employment outside New South Wales after the deemed date of injury.

8. [65]

   In Schofield, the question to be determined was the extent of the defendant’s liability for the earlier injury deemed to have occurred in New South Wales. The reason that the deduction was made for his latter employment was because it occurred outside the jurisdiction of New South Wales. Schofield does not assist the situation here where Mr Nicol suffered injury entirely within New South Wales.

Mr Nicol’s submissions

1. [66]

   So far as the failure to take a correct history (issue 1) is concerned, Mr Nicol’s basic contention is that the AMS had all the material before him and has adequately referred to the material that was before him when assessing the PIRS scale. He has referred to his own observations and the history he has taken, and has therefore complied with his obligations when undertaking a medical assessment for the purpose of completing a MAC.

2. [67]

   Mr Nicol submitted that Dr Hanson described the incidents at Cambridge as an exacerbation of his pre-existing condition. The depressive condition was described in Dr Hanson’s report of 21 July 2007 as being a result of the bullying at Macquarie University.

3. [68]

   Paragraphs 2.9 (a) to (e) of Macquarie University’s submissions all deal with Dr Hanson's evidence as it is contained in his medical certificates and reports dated 22 December 2008 and 27 February 2009. These reports were before the AMS and were referred to by him on page 7 of the MAC. It is clear the AMS has read the doctor’s reports and considered them and he also refers to the respondent's statement. Clearly the AMS has considered Dr Hanson's reports which constitute the basis of “issue” one. The reports of Dr Hanson were available and dealt with all the issues Macquarie University is complaining of and have been considered by the AMS.

4. [69]

   In so far as Macquarie University’s submission that the AMS’s failure to take a correct history is shown by the fact that Mr Nicol told an investigator that he “was almost recovered” when he started with Cambridge, this discounts all the medical evidence which is that he was under treatment from the time he started with Cambridge. Mr Nicol refers to Dr Hanson and Dr Khan where Dr Khan clearly states that Mr Nicol was being treated on a weekly basis before the death of his work colleague and the aggravation from Cambridge had ceased before Mr Nicol started with CGU.

5. [70]

   Issue 2 (failure to make deduction) is dependent on a finding that the AMS has not properly considered the material on the Cambridge incidents; Mr Nicol’s submission is that the AMS has and so this is not an issue.

6. [71]

   As to issue 3 (error in applying PIRS scale) this is that the AMS has not explained the difference between his PIRS assessments and Dr Way’s assessments. Mr Nicol submitted that the AMS based his PIRS assessments on the interview he had with Mr Nicol, the AMS does refer to the other medical reports which are referred to on page 7 of the MAC, where he specifically refers to Dr Way’s findings and that deals with any difference between their assessments.

The Registrar’s decision

1. [72]

   Macquarie University claimed that the medical assessment by the AMS should be reviewed on two grounds. They are that the assessment was made on the basis of incorrect criteria s 327(3)(c)) or the medical certificate contains a demonstrable error s 327(3)(d). On 12 December 2016, the Registrar was satisfied that at least one of the grounds of appeal was made out in accordance with s 327(4)) of the WIM Act and referred the appeal to the Appeal Panel for review of the AMS’s assessment.

Incorrect criteria and demonstrable error

1. [73]

   In terms of what is to be determined as “incorrect criteria”, the Minister for Police, who moved the second reading of the Bill (NSW Legislative Assembly, Hansard, 19 June 2001, p 14772), indicated that:

2. [74]

   In Campbelltown City Council v Vegan [2004] NSWSC 1129, this passage from the second reading speech was extracted, and it was stated by Wood CJ at CL at [59]:

3. [75]

   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]:

The decision of the Appeal Panel dated 26 May 2017

1. [76]

   The Appeal Panel consisting of Arbitrator John Wynyard a psychiatrist) and Approved Medical Specialist Drs Robert Gertler and Brian Parsonage conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. The Appeal Panel conducted a review of the medical evidence.

2. [77]

   Macquarie University requested that Mr Nicol be re examined by an AMS who was a member of the Appeal Panel. The Appeal Panel determined that such a re-examination was necessary and this re-examination was conducted by Dr Gertler at [87] of the Appeal Panel’s reasons.

3. [78]

   The Appeal Panel stated in its reasons for the decision at [68]-[87]:

Re examination by Dr Gertler

1. [79]

   On 14 March 2017, Appeal Panel member Dr Gertler re examined Mr Nicol. Dr Gertler took Mr Nicol’s medical history, and where it differed from previous records” recorded a history in relation to Mr Nicol’s employment with Cambridge. Dr Gertler noted that the history obtained from Mr Nicol at the time of his assessment by the AMS on 13 October 2016 was discussed and in large part confirmed. Dr Gertler stated at [87]:

2. [80]

   Dr Gertler noted that since the original MAC was issued in October 2016, there had not been a change in Mr Nicol’s situation in terms of his symptomology, social activities and his treatment.

3. [81]

   Dr Gertler recorded his findings on clinical examination. He did not undertake any further investigations. Dr Gertler’s findings are record under the heading “Comments” as follows:

4. [82]

   Dr Gertler records that prior to the episode at Cambridge he would suggest that his level of whole person impairment was significantly less than it is at present.

5. [83]

   The Appeal Panel adopted the opinion of Dr Gertler and continued:

6. [84]

   The Appeal Panel then assessed each category of PIRS. I shall refer to this part of the Appeal Panel’s decision later in this judgment under judicial review ground (3).

7. [85]

   The Appeal Panel concluded at [120]-[122]:

8. [86]

   On 26 May 2017, the Appeal Panel revoked the certificate of assessment of the AMS and issued a new certificate of assessment assessing Mr Nicol’s WPI at 8%.

Obligation to give reasons

1. [87]

   Before I deal with the grounds of judicial review, I will set out the requirements of both the AMS and the Appeal Panel’s obligation to give reasons.

2. [88]

   I adopt the approach that I should read the Appeal Panel’s reasons for decision as a whole and should not read its reasons with an eye finely tuned for error: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 291). As to what constitutes sufficient reasons of a Tribunal member (and Appeal Panel), this is set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 40; [2013] HCA 43; 88 ALJR 52 (“Wingfoot”) at [47], [55]-56] and Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 (“Vegan”).

3. [89]

   I shall briefly refer to Wingfoot and Vegan.

4. [90]

   In Wingfoot, the High Court set out the function of a Medical Panel at [47]. It stated:

5. [91]

   In Vegan at [121] and [122], Basten JA (with Handley and McColl JJA agreeing) stated:

Grounds of Review

1. [92]

   There are numerous grounds of review, however the main grounds of review can be summarised as follows:

   1. (1)

      The Appeal Panel denied Mr Nicol procedural fairness as it failed to afford him an opportunity to address the issue of apportionment during the clinical assessment carried out by a member of the Appeal Panel (procedural fairness);

   2. (2)

      The Appeal Panel misapplied its statutory task in respect of causation, thereby constructively failing to exercise its jurisdiction and the Appeal Panel erred as it assumed that there had been a subsequent injury which resulted in a degree of permanent impairment. In approaching the task from this point of departure, it erred in respect of the question of causation of the degree of permanent impairment (causation): and

   3. (3)

      The Appeal Panel applied an incorrect methodology to the evaluation of permanent impairment in respect of the apportionment and thereby misconstrued its task. It thereby failed to exercise jurisdiction. Also the Appeal Panel’s approach to apportionment by treating it as causally severed when there was no probative, factual or legal basis to do so. (apportionment).

2. [93]

   I shall deal with procedural fairness first and then Grounds 2 and 3 together.

Procedural fairness – Ground 1

1. [94]

   Mr Nicol submitted that there was no medico-legal opinion that portrayed an apportionment. Nor was there medico-legal opinion that supported a negative conclusion as to the causative impact of the work injury over time, including a new, separate or independent psychiatric or psychological injury as a result of his work with Cambridge or as a result of any other aspects of his life.

2. [95]

   Further, Mr Nicol says there was no medico-legal opinion that suggested that what happened after the time of cessation of Mr Nicol’s employment with Macquarie University was a new injury, an unrelated injury or a causally different injury. Although Mr Nicol had made a claim while employed at Cambridge, the making of that claim did not legally or factually mean that the workplace injury suffered in the course of employment with Macquarie University was accompanied by a new injury, an unrelated injury or a causally different injury.

3. [96]

   According to Mr Nicol, due to the nature in which the matter was presented to the AMS, he did not need to deal with this issue of a new injury, an unrelated injury or a causally different injury. Macquarie University raised the issue of apportionment at the time of the Appeal Panel process and that it is apparent upon reading paragraph [87] that the AMS did not obtain any relevant history or make any relevant enquiry as to matters relevant to the apportionment question or causation question at the time of the clinical interview. Rather, the language of the AMS is that of recurrence as opposed to a new injury, an unrelated injury or a causally different injury.

4. [97]

   Therefore, according to Mr Nicol, on the known materials there was no issue about an apportionment approach that would effectively give rise to a deduction of 88% for a post existing condition, and there was a denial of procedural fairness in this matter.

5. [98]

   Mr Nicol further submitted that on the known materials at the time of the assessment by the AMS, the medico-legal opinion either accepted a causal connection and a causal relationship between Mr Nicol’s employment with Macquarie University, and his psychiatric and psychological injury as it developed and deteriorated over time during that employment and thereafter, or, it simply adopted the position that the injury was not work related. None of the medical opinion sought to attribute any material aspect to the work undertaken with Cambridge.

6. [99]

   Mr Nicol referred to the decision of Frost v Kourouche [2014] NSWCA 39 (“Frost”). The issue in Frost was procedural unfairness where Ms Kourouche’s credibility was in issue. This is not the situation in this current judicial review but the comments about practical injustice are pertinent.

7. [100]

   In Frost, Leeming JA (with Basten JA and Beazley P agreeing) at [36] quoted from In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594, where French CJ and Kiefel J said at [9]:

8. [101]

   The Court of Appeal in Frost (at [41]-[42] stated that the test for the obligation to afford procedural fairness is framed in terms of the avoidance of practical injustice and at [41]-[42]:

9. [102]

   With the Frost test of avoidance of practical injustice in mind, Mr Nicol asserted that the material from Drs Hanson and Khan on its face demonstrated that Mr Nicol was fully medicated, constantly treated and yet that is the antithesis of the Appeal Panel’s attribution, where they say he was in remission. Mr Nicol also submitted that in Frost, while it may well have been a possibility that on the known materials there was a dispute as to the credit of Ms Kourouche and that her version of events may not be accepted, this judicial review of apportionment and the approach to it adopted by the Appeal Panel was never adverted to on the known materials.

10. [103]

    Finally, Mr Nicol submitted that had it been raised with the parties, there would have been an opportunity to obtain a medico-legal opinion to deal with the question of causal connection and submissions would have been made on that topic.

11. [104]

    Macquarie University submitted that both parties were alive to the issues that were brought before the AMS and there was a complete set of documents that covered the entire history. At the time of the medical examination by Dr Gertler, Mr Nicol had every opportunity to discuss his circumstances to the extent that they were inconsistent with Macquarie University’s position.

12. [105]

    Macquarie University also submitted that the requirements of procedural fairness are not to be applied after dissection of each component of the medical assessment reflected in the certificate, treating each as a discrete issue.

13. [106]

    Macquarie University maintained that procedural fairness does not require the Appeal Panel to disclose that it proposes to increase or decrease a WPI because it has reached a different view to the AMS as to the degree of WPI. Nor does it require the Appeal Panel to disclose in advance for comment its evaluation of the proportion of deduction which is appropriate in respect of pre-existing injury. In support of these propositions, Macquarie University referred to Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 839 (“Crean”) where McClellan CJ at CL stated at [37] to [40]:

14. [107]

    Macquarie University submitted that there was a failure on the part of the AMS to take a correct history of the subsequent psychological injury sustained while Mr Nicol was employed at Cambridge. It was also submitted to the Appeal Panel that there was a failure to make a deduction on the assessment of permanent impairment due to the ongoing effects of the subsequent injury sustained at Cambridge. Therefore according to Macquarie University, these matters were put squarely on the record for consideration by Mr Nicol and whatever Mr Nicol wished to raise he ought to have done so in response. Moreover, Macquarie University asserted that there was no argument put forward in submissions in opposition by Mr Nicol which could have suggested that the AMS should isolate himself to only one set of employment circumstances.

15. [108]

    Macquarie University also referred to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 where the Court of Appeal stated that an expert report in judicial proceedings must take into account the whole history relevant to the subject matter of the opinion. In other words, according to Macquarie University, the opinion of the expert cannot be said to hold much weight if the whole of the material is not available for consideration. As such, in the present case it would have been impossible for the Appeal Panel to make a sensible and accurate finding without the complete history. In this regard, the AMS and Dr Way made no attempt to take into account the subsequent employment with Cambridge.

16. [109]

    Neither the AMS nor the Appeal Panel accepted the views of Drs White and Roberts who held the view that Mr Nicol’s injury did not have anything to do with his employment at Macquarie University. Some of the medical specialists and general practitioners whose reports were before the AMS (and the Appeal Panel) expressed various opinions as to the effect of Mr Nicol’s subsequent employment at Cambridge upon the injury he suffered at Macquarie University. These medical views have been referred to earlier in this judgment.

17. [110]

    Both the AMS and the Appeal Panel favoured the reports of Mr Nicol’s treating general practitioner, Dr Hanson, his treating psychiatrist, Dr Khan, and the psychiatrist who took over when Dr Khan retired, Dr Sternhell.

18. [111]

    The Appeal Panel took issue with the AMS’s understanding of Dr Hanson’s opinions expressed in his report dated 22 December 2008. The AMS merely stated in his reasons “A further doctor’s report of Dr Hanson (22.12.2008) was also noted”.

19. [112]

    In this report Dr Hanson when asked:

20. [113]

    Dr Hanson replied:

21. [114]

    At question 3, Dr Hanson was asked:

22. [115]

    Dr Hanson replied:

23. [116]

    The Appeal Panel regarded it as significant that while the AMS mentioned the report of 22 December 2008, he did not discuss nor refer to the above opinion expressed by Dr Hanson. The Appeal Panel referred to Dr Hanson’s opinion and then stated that Mr Nicol’s prior condition was in remission and that Mr Nicol suffered a recurrence of major depression at Cambridge.

24. [117]

    The Appeal Panel also stated that the AMS did not consider the question of causation regarding the circumstances of Mr Nicol’s subsequent employment and termination. The Appeal Panel was satisfied that the AMS had made a demonstrable error in finding that there had been no subsequent injury, nor considering that issue in his reasons. The Appeal Panel was therefore satisfied the AMS’s reasons did not attain the minimum level as discussed in Vegan.

25. [118]

    I accept that in accordance with Crean procedural fairness does not require there to be disclosure of the intention on the part of the Appeal Panel to increase or decrease a WPI finding if the finding in regards to WPI is to be different from that of the AMS. Additionally, there is no requirement for an Appeal Panel to disclose in advance for comment its evaluation of the proportion for deduction which is appropriate in respect of subsequent injury.

26. [119]

    It is important to recognise that the test set out in Frost, is framed in terms of the “avoidance of practical injustice”. This test stipulates that procedural fairness requires the decision maker to take any and all necessary steps to ensure a fair hearing. It is fair to say that both parties addressed Mr Nicol’s injury or injuries at Macquarie University and subsequently at Cambridge in the submissions made to the Appeal Panel. Mr Nicol was re-examined by a member of the Appeal Panel. If Mr Nicol wished to obtain a further medical legal report on causation to put before the Appeal Panel, he could have requested an opportunity to obtain one. He did not do so.

27. [120]

    In these circumstances, it is my view that the Appeal Panel afforded Mr Nicol procedural fairness.

Causation – Ground 2

1. [121]

   Mr Nicol argued that the Appeal Panel misapplied its statutory task in respect of causation and thereby constructively failed to exercise its jurisdiction. Mr Nicol referred to the Appeal Panel’s reasons at [79] where it stated:

2. [122]

   According to Mr Nicol, there was no factual or legal basis to treat the situation as having been causally severed, yet the Appeal Panel’s approach to apportionment treated the situation as causally unconnected.

3. [123]

   There was no evidence that Mr Nicol had recovered from the injury that he had sustained in the course of his employment with Macquarie University in the sense that the injury had completely resolved and ceased to be an injury, prior to him commencing work with Cambridge. At the highest, there was a suggestion by Mr Nicol’s general practitioner that his condition was in remission prior to the incidents that occurred in November 2008. This suggestion had to be viewed in the temporal circumstances that Mr Nicol was first certified as not being capable of working on 11 May 2006, and commenced in the role with Cambridge on 23 October 2006. Further, any suggestion of remission had to be viewed in the setting of Mr Nicol’s heavy consumption of medication, as noted by the AMS which plainly showed that there was no remission, but rather management by medication. Mr Nicol’s condition deteriorated after he commenced employment with Cambridge. There was no evidence that Mr Nicol had sustained a new, separate or independent psychiatric or psychological injury as a result of his work with Cambridge, or as a result of any other aspects of his life. Even if there had been a remission, that did not mean there was a new, separate or independent psychiatric or psychological injury as a result of his work with Cambridge, or as a result of any other aspects of his life.

4. [124]

   This language of a new injury causing a recurrence of symptoms signals errors, as legally and factually a new injury does not cause symptoms of an old injury to recur. In this case, all the submitted medico-legal opinions accepted a causal relationship beyond the time of employment with Macquarie University. However the approach of the Appeal Panel is to artificially separate causation at the time of Mr Nicol’s termination of employment by Macquarie University. This reveals the practical explanation as to why the Appeal Panel mistakenly approached the recurrence of symptoms from an old injury as being causally related to a new injury.

5. [125]

   Mr Nicol submitted that once employment is a substantial contributing factor to the injury, which was not in dispute in relation to the employment at Macquarie University, matters of causal connection between the injury and symptoms and disabilities, including deterioration are legally and factually controlled by whether there has been a novus actus sufficient to break the causal connection in a situation where there is otherwise a causal connection.

6. [126]

   On this topic, both parties referred to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, (“Kooragang”), where Kirby P (with Sheller and Powell JJA agreeing) stated at [461G], [462E] and [463]-[464]:

7. [127]

   It should be noted that the satisfactory formula in these current proceedings is different to that referred to by Kirby P in Kooragang. These proceedings are governed by s 9A(1) of the Workers Compensation Act.

8. [128]

   Mr Nicol also referred to Roger v De Gelder [2015] NSWCA 211 where Gleeson JA (with Macfarlan and Leeming JJA agreeing) stated at [107]-[110]:

9. [129]

   Mr Nicol submitted that there was no probative evidence that permitted a negative causation conclusion. Rather, this was an orthodox situation whereby there was a causally connected progressive deterioration of symptoms and disabilities when he pursued other life activities such as employment.

10. [130]

    Mr Nicol further submitted that the Appeal Panel’s approach was contrary to a correct application of causation. He referred to the Appeal Panel’s statement in support of this proposition at paragraphs [82]-[83] that have been reproduced earlier this judgment at [78].

11. [131]

    Mr Nicol submitted that the practical reality was that he had not recovered, rather he was medicated and that such a scenario could never amount to a cessation of the relevant legal and factual causation connection. However, the Appeal Panel treated it as though it did.

12. [132]

    Macquarie University referred to Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 in order to demonstrate the importance of considering that the injury which Mr Nicol sustained while employed at Cambridge was a separate event. At [36], I stated that:

13. [133]

    The appeal in Bindah v Carter Holt Harvey Wood Products [2014] NSWCA 264 was dismissed.

14. [134]

    Mr Nicol’s statement dated 24 May 2016 dealt with the causal pathway between Macquarie University and subsequent matters:

15. [135]

    Macquarie University referred to an additional statement of Mr Nicol dated 17 December 2008 which was obtained for the purposes of the claim which he made in respect of his employment with Cambridge. Counsel for Macquarie University submitted that this statement is reflective of a new set of psychiatric circumstances, as Mr Nicol himself recorded in a statement that:

16. [136]

    It is fair to say these two statements are inconsistent. In his first statement, Mr Nicol says that he still had depression as a consequence of his bullying at Macquarie University. Whereas in his second statement, Mr Nicol says that his depression had largely resolved and he was not feeling stressed or depressed when he began work at Cambridge.

17. [137]

    Macquarie University submitted that Dr Hanson’s report dated 22 December 2008 indicated that Mr Nicol’s condition was normal. Furthermore, with the fact that Mr Nicol had himself made a separate claim in respect of the Cambridge employment where there was a different set of circumstances, demonstrates a different causal pathway.

18. [138]

    Macquarie University also submitted that there was an aggravation, acceleration, exacerbation or deterioration of a pre-existing disease of major depression. According to Macquarie University, the Appeal Panel properly stated in its reasons that it was satisfied that the incidents at Cambridge caused a fresh injury in the form of the recurrence of the major depression which, at that time, was in remission.

19. [139]

    Macquarie University maintained that the psychological condition maintained by Mr Nicol was a disease pursuant to s 4 of the WIM Act. As such, the injury at Cambridge was constituted by an aggravation of the pre-existing condition. That is, there was a failure of an area of the body to cope with repeated stress imposed on it: see Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253.

20. [140]

    “Injury” is defined in s 4(a) of the Workers Compensation Act as a “personal injury arising out of or in the course of employment”. Section 9A(1) further provides that the causation of an injury is established where the employment is a substantial contributing factor to the injury. The injury which was to be assessed by the AMS and the Appeal Panel in the present case was the WPI caused by Mr Nicol’s physiological/psychiatric injury disorder that allegedly occurred in October 2006. In making this assessment, it is therefore not only necessary that the Appeal Panel have considered causation, but that it also considered whether employment was a substantially contributing factor to the injury. Once causation is established, there is a causal connection between the injuries, symptoms and disabilities, including any deterioration, except where the causative chain is broken.

21. [141]

    While care should be taken by the Court to avoid unduly imposing legalise into the assessment of workplace injuries, causation remains an essential element in establishing liability under the Workers Compensation Act and, in particular, in assessing whether the employment was a substantial contributing factor per s 9A(1) of the Act.

22. [142]

    There are several alternative outcomes in regards to causation where a latter injury aggravates or contributes to a prior injury. In Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 (“Aboushadi”), the Court of Appeal considered the relevant principles where a second accident caused greater damage due to the result of an earlier accident. Mason P (with whom Meagher JA and Barr J agreed) stated at [22]:

23. [143]

    It is not disputed that Mr Nicol first suffered a psychiatric injury when he was employed by Macquarie University where his period of employment commenced in January 2005. The Appeal Panel referred to a new injury in November 2008 as the event which caused Mr Nicol’s symptoms to recur at [79], before going on to state that the subsequent injury at Cambridge and other subsequent stressors have contributed to his present level of dysfunction.

24. [144]

    I accept that the decision on causation of Mr Nicol’s depression is essentially a medical opinion, but the Appeal Panel’s decision must nevertheless be made in accordance with the statutory requirements, including s 9A(1) of the Workers Compensation Act. The Appeal Panel did not specifically set out the statutory requirements of s 9A(1). The language used by the Appeal Panel also indicated that the new injury caused Mr Nicol’s symptoms to recur, yet made no reference to any novus actus that broke the chain of causation from Mr Nicol’s earlier injury sustained at Macquarie University.

25. [145]

    The characterisation of the new injury as causing symptoms to recur suggests that the new injury and prior injury are linked. Based upon the decision of Aboushadi (which I have set out above), the present circumstances appear to fall into the second category. In other words, the further injury which resulted at Cambridge would have occurred even if Mr Nicol had been in normal health, but the damage sustained was greater because it was an aggravation of the earlier injury from Macquarie University. It is this additional damage resulting from the aggravated injury that remains causally linked to the first injury at Macquarie University. While Macquarie University submitted that the aggravation of an earlier injury does fall within the scope of the statutory definition of “injury” under s 4 of the Workers Compensation Act, it does not follow that the aggravation alone results in a new injury unless the causal chain has been broken.

26. [146]

    The Appeal Panel also made reference to Mr Nicol’s improvement in condition as constituting a remission of the first injury. The Appeal Panel did not refer to Mr Nicol being on any medication at that time. Putting to one side the inconsistent statements of Mr Nicol regarding his depression, this improvement does not constitute the required novus actus to snap the causative connection as set out in Kooragang.

27. [147]

    In my view, the Appeal Panel’s reasoning on causation discloses that it misapplied its statutory task and thereby constructively failed to exercise its jurisdiction. The Appeal Panel’s decision is vitiated by jurisdiction error.

28. [148]

    It is now not necessary to consider the judicial ground of review concerning apportionment and the application of PIRS (ground 3). Had the Appeal Panel not erred in its finding on causation and correctly that the Cambridge injury was a new injury, it would have followed that the assessment of WPI using PIRS would have been correct and the deductions would have been made in accordance with its determination.

29. [149]

    Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis.