Kuzet v The Registrar of the Workers Compensation Commission

1. [1]

   HER HONOUR: This is an application pursuant to s 69 of the Supreme Court Act 1970 for judicial review of a decision of the Appeal Panel of the Workers Compensation Commission.

2. [2]

   The plaintiff, Ms Stevanija Kuzet, was injured in 2008 during the course of her employment as a kitchen hand at Liverpool Hospital. The injury occurred while she was lifting a box weighing between 15 and 20 kilograms. Ms Kuzet claimed to have suffered permanent injury to her lumbar spine, her cervical spine and her right upper extremity (shoulder) and sought an award of permanent impairment compensation for those injuries. The employer having disputed the claim, Ms Kuzet sought an assessment of the degree of permanent impairment in accordance with s 65 of the Workers Compensation Act 1987. An award of permanent impairment compensation is not payable by a worker’s employer unless the degree of permanent impairment is greater than 10 per cent: see s 66 of the Act.

3. [3]

   On 16 February 2011 an approved medical specialist certified the degree of permanent impairment due to the injuries referred at 5 per cent whole person impairment. In his reasons for assessment, the approved medical specialist stated his opinion that there is no permanent impairment of the lumbar spine or the right shoulder as a result of the injury. He accepted that the injury aggravated pre-existing asymptomatic degenerative changes in the cervical spine. The assessment of 5 per cent whole person impairment was based on that finding.

4. [4]

   Ms Kuzet made an application to appeal against that assessment. Such appeals are governed by s 327 of the Workplace Injury Management and Workers Compensation Act 1998. That section specifies the grounds on which an appeal may be sought and prescribes the procedure to be applied. Section 327(4) provides that an appeal is not to proceed unless the Registrar is satisfied, on the face of the application and any submissions provided, that at least one of the grounds specified has been made out. The Registrar was satisfied that Ms Kuzet’s appeal could proceed either on the ground that the assessment was made on the basis of incorrect criteria or on the ground of demonstrable error.

5. [5]

   After conducting a preliminary review of the original assessment, the Appeal Panel determined that it was not necessary for Ms Kuzet to undergo a further medical examination. The parties agreed to the determination of the appeal without an assessment hearing. The decision of the Appeal Panel was that the medical assessment certificate of the approved medical specialist should be confirmed. The statement of reasons for decision of the Appeal Panel was dated 6 October 2011.

6. [6]

   The summons commencing these proceedings was filed on 17 May 2013. The relief claimed includes leave pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 to bring the proceedings out of time. The substantive relief sought is a declaration that the decision of the Appeal Panel was made contrary to law and an order quashing that decision. The summons also claims an order that the proceedings be remitted to the Registrar of the Workers Compensation Commission. However, that relief was not pressed after it was ascertained that there is no application for compensation pending before the Commission (the application in support of which the assessment was originally sought having subsequently been discontinued by Ms Kuzet). Ms Kuzet nonetheless retains an interest in challenging the assessment, since a further application is contemplated and the certificate stands as conclusive evidence in any proceedings in accordance with s 121(4) of the Workplace Injury Management and Workers Compensation Act 1998.

7. [7]

   For the reasons that follow, I have concluded that, if an extension of the time for commencing the proceedings is required, it should be granted but that the relief sought should otherwise be refused and the summons dismissed.

Application to bring the proceedings out of time

1. [8]

   Part 59 of the Uniform Civil Procedure Rules came into force on 15 March 2013. It prescribes the procedure to apply in proceedings under s 69 of the Supreme Court Act. Rule 59.10 introduced a time limit for the commencement of proceedings for judicial review of a decision. The rule provides that such proceedings must be commenced within three months of the date of the decision. Whether the rule could operate so as to oust the jurisdiction of the Court to review a decision in proceedings commenced outside that period was not addressed in the proceedings before me.

2. [9]

   The summons in the present case was filed within two months after the introduction of the new rule. Prior to its introduction, no time limit applied in respect of proceedings under s 69 of the Supreme Court Act, although delay in the bringing of such proceedings was (and remains) relevant to the decision whether to exercise the discretion to grant the relief sought.

3. [10]

   The rule expressly does not apply to proceedings commenced before the commencement of the rule: see r 59.1(2). The rule is otherwise silent as to any retrospective operation. In particular, the rule is silent as to its application to proceedings commenced after the commencement of the rule seeking review of a decision made more than 3 months before the commencement of the rule.

4. [11]

   Arguably, a plaintiff in that circumstance has something analogous to an accrued right to bring the proceedings without leave or at least to do so within 3 months after the commencement of the rule (which occurred in the present case). In any event, it having been assumed on behalf of the plaintiff that an extension of time is required in the present case, it is appropriate to adopt that assumption.

5. [12]

   Rule 59.10(2) confers power on the court at any time to extend the time for commencing proceedings for judicial review. It was conceded on behalf of the employer at the hearing of the present application that the merits of the application would be a relevant consideration in determining whether to grant an extension of time. On that basis, I determined to hear the application for leave together with the substantive application for judicial review.

6. [13]

   Rule 59.10(3) provides a list of factors of which the court should take account in determining whether to extend the time fixed by r 59.10(1). In addition to “such factors as are relevant in the circumstances of the particular case”, they are:

7. [14]

   As to the first of those, plainly the plaintiff’s interest in challenging the decision is an important consideration in favour of granting an extension of time since, so long as the certificate stands, her entitlement to permanent impairment compensation is foreclosed. Further, as already noted, the certificate stands as conclusive evidence in any further proceedings. It is not suggested that there is any specific prejudice to any of the defendants caused by the passage of time. The third factor operates against the plaintiff, since the period of delay is lengthy. An affidavit relied upon in support of the application explained that the principal cause of the delay fell at the feet of counsel originally briefed in the matter (not Ms Nolan, who appeared at the hearing). I do not think any relevant public interest is determinative. On the one hand, there is a public interest in the prompt determination of such application. Conversely, however, if the decision entailed jurisdictional error as alleged, the public interest would be served by rectifying that transgression of power.

8. [15]

   A principal factor in my determination that an extension of time should be granted (if required) is the fact that the legal argument in support of the application for judicial review rested primarily on the contention that the proceedings are governed by a decision of another judge of this Court. For the reasons explained below, I have come to the conclusion that the argument must be rejected but it was arguable and properly argued. For those reasons, I have concluded that the extension of time sought should be granted.

Application for judicial review

1. [16]

   The grounds of the jurisdictional error alleged by the plaintiff are stated in the summons in the following terms:

2. [17]

   The critical premise of those grounds is the contention that the finding of abnormal illness behaviour necessarily precluded the conclusion that the injuries were permanent and stabilised. It was submitted that, unless the injuries were permanent and stabilised, there was no power or legal occasion for proceeding to make an assessment of the degree of permanent impairment.

3. [18]

   A similar ground for judicial review was accepted by Adams J in Ojinnaka v ITW Australia Pty Ltd [2011] NSWSC 208.

4. [19]

   The argument begins with the provisions of the WorkCover Guides for the Evaluation of Permanent Impairment, which govern the assessment of permanent impairment. Clause 1.21 (described by Adams J as “the crucial provision”) provides:

5. [20]

   It was common ground in Ojinnaka that the plaintiff had suffered a physical injury to his shoulder and that the resulting impairment was complicated by “a significant functional overlay”. It was also common ground that the approved medical specialist had excluded the effects of the functional overlay from his consideration. Adams J was satisfied that the effect of doing so was that it was not possible for the approved medical specialist to determine whether the permanent impairment was “fully ascertainable” within the meaning of clause 1.21. His Honour said, “as is not controversial, a condition demonstrating a functional overlay is dynamic and susceptible to treatment which may be more or less effective”. His Honour’s judgment, delivered ex tempore, does not make clear whether that was an accepted medical proposition noted in the record of the decision of the approved medical specialist or whether it was something put by way of submission in support of the application for judicial review.

6. [21]

   Adams J concluded, at [13] to [14]:

7. [22]

   Those remarks characterised the error as being one or other of two alternatives. The first was that “a significant feature of the impairment was disregarded and hence the ‘degree’ of permanent impairment was not actually considered”. That analysis assumes that, to the extent that the degree of impairment was perceived by the injured worker to be other (worse) than was explained on organic grounds, that increment of perceived impairment was itself an aspect of the permanent impairment to be assessed. I do not think that is consistent with the approach which was required to be adopted in the present case. It is not clear to me whether Ms Kuzet’s “abnormal illness behaviour” described in the certificate is to be regarded as a psychological injury. No such injury was cited in the matters referred for assessment. If it was a psychological injury, it was a secondary psychological injury and no compensation was payable in respect of it: see s 65A(1) of the Workers Compensation Act. If it was not a psychological injury but only a condition which affected Ms Kuzet’s subjective perception of her primary injuries, I do not see how it could be characterised as a feature of the functional impairment required to be assessed. The Guides specifically commend the use of “objective and scientifically based data”, stating (at 1.5 of AMA 5, exhibit K to the affidavit of Katrina Hodgkinson sworn 11 April 2014, referred to in the employer’s written submissions at [13]):

8. [23]

   In my respectful opinion, the question whether Ms Kuzet’s abnormal illness behaviour was a feature of the impairment required to be considered in assessing the degree of permanent impairment was properly within the realm of the assessor’s clinical judgment, not a matter for legal analysis. I am not persuaded that error of law or jurisdictional error is established on that ground.

9. [24]

   The alternative analysis identified by Adams J was that “the psychological element was at all events necessarily dynamic and accordingly the degree of permanent impairment could not be at that point fully ascertainable”. That issue was addressed in the decision of the Appeal Panel, which stated that the abnormal illness behaviour was unrelated to the stability of Ms Kuzet’s condition. The Appeal Panel said (at [23]): “Her condition can be stable with ongoing pain behaviour”. Indeed, the record of the decision quoted the following finding of the approved medical specialist:

10. [25]

    As explained in the reasons for decision of the Appeal Panel, the submission that abnormal illness behaviour precludes a finding that the degree of permanent impairment is fully ascertainable confuses the stability of the impairment with the consistency of its presentation. A finding that the degree of impairment perceived or reported is inconsistent with the mechanism of injury and cannot otherwise be explained on organic grounds does not necessarily preclude an assessment that the relevant condition has stabilised. As the Appeal Panel recorded in the present case, Ms Kuzet’s case had seen no clinical improvement over a period of two and a half years. Whether the degree of permanent impairment was fully ascertainable was quintessentially a matter of clinical judgment, not legal analysis. I am not persuaded that error of law or jurisdictional error is established on that basis.

11. [26]

    While the present application finds some support in the decision of Adams J in Ojinnaka, I do not think that decision compels the conclusion that error is established in the present case.

12. [27]

    For those reasons, I have concluded that the summons must be dismissed. The orders are:

    1. (1)

       That the time for commencing these proceedings be extended to 17 May 2013.

    2. (2)

       That the proceedings be dismissed.