Secretary, Department of Communities and Justice v Workers Compensation Commission & Ors

This is an application for an order in the nature of certiorari to quash a decision of an Appeal Panel constituted by two approved medical specialists and an Arbitrator chosen by the Registrar of the Workers Compensation Commission. The Appeal Panel dismissed an appeal by the plaintiff from a medical assessment by an approved medical specialist who had determined that the third defendant, Ms Roberta Mead, had suffered a 15% permanent impairment as a result of an injury incurred in the course of or arising out of her employment.

The active parties to the proceedings are the plaintiff who stands in the position of Ms Mead’s employer (Government Sector Employment Act 2013 (NSW), s 26) and Ms Mead. No issue was taken with the joinder of the Workers Compensation Commission as the first defendant although the appropriate party would have been the Registrar of the Workers Compensation Commission (Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [55]). The Appeal Panel was named as the second defendant. Both the first and second defendants entered submitting appearances.

The plaintiff contends that the Appeal Panel committed jurisdictional error by failing to engage actively with its grounds of appeal.

For the reasons which follow the application should be dismissed.

Ms Mead was employed as a caseworker manager in the Department of Family and Community Services in its St Marys and later its Penrith office. She alleged that from at least 2012 she was harassed and bullied by a co-worker a consequence of which she ceased work temporarily on 22 March 2013. A workers compensation claim in respect of bullying was accepted by the insurer in May 2013. She resumed employment in September 2013 at the Penrith office but alleged that she experienced further bullying. In March 2015 Ms Mead submitted a workers compensation claim to her employer which, she says, was accepted. On 19 May 2017 she was advised by her employer that she had been “medically retired from your role as Manager Caseworker, Community Service, Family and Community Service. The reason for the medical retirement is that an independent medical assessment undertaken by the insurer found that you were permanently unfit to undertake your role due to a psychological injury sustained on the (sic) 22 March 2013.”

The material provided to the approved medical specialist (AMS) and which was before the Appeal Panel included a statement from Ms Mead dated 20 February 2020 in which she stated that:

On 19 March 2019 Ms Mead’s solicitors wrote to the Department of Family and Community Services making a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 for 15% whole person impairment. Attached to that claim was a report of a Dr Jeff Bertucen dated 26 February 2019. Dr Bertucen diagnosed Ms Mead with a major depressive disorder with elements of generalised anxiety and social phobic disorder.

Dr Bertucen stated that “Ms Mead works full time in the Payment Team of NDIS based in the Sydney CBD.” He recorded that:

Section 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the Act) provides that the assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) and issued for that purpose.

The Guidelines relevant in the present case are the NSW Workers Compensation Guidelines, 4th ed, 1 April 2016, issued by the State Insurance Regulatory Authority. Section 11 of those Guidelines dealt with psychiatric and psychological disorders. They excluded the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th ed (AMA5). [1]

Relevantly for present purposes the Guidelines included the following:

The Guidelines then set out the six scales referred to in 11.11. The sixth scale dealing with employability provided as follows:

A score was to be allocated for each scale numbered between one and five according to the AMS’ assessment of the class of each scale into which the worker fell. The AMS was then required to calculate the median score. If the median score fell between two classes, it was to be rounded up to the next class (clauses 11.14 and 11.15). A median score of Class 2 would fall within a range of impairment of between 4% and 10%. A median score of Class 3 would fall within a range of 11% and 30%. The assessor would also calculate the aggregate score by adding the six class scores (clause 11.17). Relevantly to the present case, if the aggregate score were 15 but the median class score were 2, that would translate to a measurement of permanent impairment of 8%. On the other hand, if the aggregate score were 15 but the median class score (after rounding up) were 3, that would translate to a 15% degree of permanent impairment (clause 11.20).

The degree of whole person impairment is relevant not only to an injured worker’s entitlement to lump sum compensation under s 66 of the Workers Compensation Act but to the worker’s entitlement to claim common law damages.

Dr Bertucen considered that Ms Mead fell within Class 3 in respect of scales A (Self-Care and Personal Hygiene), B (Social and Recreational Activities), and E (Concentration, Persistence and Pace (Cognitive Functioning)) and within Class 2 in respect of scales C (Travel), D (Social Functioning (Forming and Maintaining relationships)) and F (Adaptation (Employment)). This gave a median score of 2.5 which rounded up to a median class score of 3, and an aggregate score of 15 which translated to an assessment of whole person impairment of 15%. In relation to scale F (Adaptation (Employment)), Dr Bertucen said:

The plaintiff’s insurer did not accept the assessment. On 25 February 2019 Ms Mead filed an Application to Resolve Dispute with the Workers Compensation Commission and attached supporting documentation. The matter was referred by the Commission to an Approved Medical Specialist, a psychiatrist, Dr Peter Anderson. He examined Ms Mead on 1 May 2020. He issued a Medical Assessment Certificate on 15 May 2020. He assigned the same class score for categories A, B, C and E as had Dr Bertucen. However he assessed Ms Mead as having a class score of 2 for scale D (Concentration, Persistence and Pace) whereas Dr Bertucen had assessed Ms Mead as Class 3. He assessed Ms Mead as Class 3 for scale F (Employability) whereas Dr Bertucen had assessed Ms Mead as Class 2.

The effect of Dr Anderson’s assessment was to give Ms Mead the same median and aggregate score as Dr Bertucen had reached albeit for different reasons.

It will be necessary to return to Dr Anderson’s assessment in detail below.

Dr Anderson also added 1% for the effects of treatment in maintaining Ms Mead’s symptoms and impairments at the best possible level giving rise to a final whole person impairment assessment of 16%.

The plaintiff applied to the Registrar of the Commission seeking to appeal from the decision of Dr Anderson to the Appeal Panel. Under s 327(4) an appeal was not to proceed unless the Registrar of the Commission was satisfied that on the face of the application and any submissions made to the Registrar, at least one of the grounds specified in subsection (3) was made out. The plaintiff relied on two permutations of ground (d) which is that the medical assessment certificate contains a demonstrable error. These were:

The Registrar allowed the appeal to proceed.

The second ground succeeded. The first ground failed. There is no issue in relation to the second ground.

As explained in more detail below, the plaintiff’s submission to the Appeal Panel had two themes. One theme was that Dr Anderson (the AMS) should have determined that Ms Mead’s functional impairment was properly rated in Class 2 as a mild impairment consistent with the opinion of Dr Bertucen because Ms Mead was able to work in fulltime employment (Submission paras 4.3, 4.10 and 4.16 quoted below at [34]). An interwoven theme was that the Application to Resolve Dispute lodged with the Commission contained no evidence given by Ms Mead that described in any detail the nature of her role with the NDIS and in particular whether it was a role requiring less skill and intellect than her pre-injury position (Submission paras 4.5, 4.6, 4.7, 4.9 and 4.16 quoted below at [34]).

The Appeal Panel rejected the appeal in relation to the AMS’ determination that Ms Mead suffered 15% permanent impairment. No appeal lies from that determination. The plaintiff seeks judicial review of that determination on the basis that the Appeal Panel failed to consider the plaintiff’s submission that there was no evidence for the AMS’ conclusion that Ms Mead’s post-injury employment lacked managerial responsibility, or required less skill or intellect than her pre-injury employment. The plaintiff submitted that the Appeal Panel failed to engage with a substantial and well-articulated argument to that effect and thereby its decision is affected by jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 77 ALJR 389; [2003] HCA 26 at [24]; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 at [26]. The plaintiff acknowledges that the Appeal Panel recorded the submission but says that the Appeal Panel failed to engage actively with it: Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [36]-[37].

To address this argument, it is necessary to set out in some detail the reasons of the AMS, the submissions made to the Appeal Panel and the Appeal Panel’s reasons.

Section 325(2) of the Act provides:

The Certificate recorded that Dr Anderson had examined Ms Mead on 1 May 2020 by Skype and that the date of injury was indicated by her as being between about October 2012 and March 2013 and then 23 March 2013. Dr Anderson recorded her occupation with the Department of Communities and Justice as “manager case worker”. He recorded a history taken that included that Ms Mead started with Community Services in 2001 as a student and then became a caseworker and then a manager caseworker. She obtained the position of manager caseworker, she said, on merit via a selection process. Dr Anderson referred to her complaints of being bullied, to the effects of that upon her and to the time she had off a work as a result of the bullying. In relation to her new position, Dr Anderson stated:

After referring to Ms Mead’s treatment, symptoms and details of any previous or subsequent accidents, injuries or conditions, her general health and social activities, Dr Anderson stated:

Dr Anderson stated that the facts on which his assessment was based were “the clinical examination and perusal of documentation submitted by the parties.” Under the heading ‘Reasons for Assessment’, Dr Anderson stated that Ms Mead continued to suffer from a major depressive disorder. He said:

In relation to his assessment of Ms Mead falling within Class 3 of Scale F (Employability), Dr Anderson said:

There is no dispute that the descriptors of the relevant classes of the scale “Employability” do not cover the field. If a worker is not assessed as falling within the descriptors for either Class 2 or 3, then it is a matter for the clinical judgement of the AMS as to whether the worker should be assessed as having mild impairment (Class 2) or moderate impairment (Class 3).

A medical assessment can be appealed on the grounds provided for by s 327(3) of the Act. The plaintiff appealed from the finding that Ms Mead fell within Class 3 of the Employability scale on the ground that the Certificate contained a “demonstrable error”.

No issue was raised on this application as to whether the “no evidence” ground relied upon was a “demonstrable error” within the meaning of s 327(3)(d). That is, there was no argument as to whether in order for an error under s 327(3)(d) to be a “demonstrable error”, the error must appear on the face of the Certificate, and if so, how the requirement in s 325(2)(d) that a Medical Assessment Certificate set out the facts on which the assessment is based is relevant to that question. However, these questions do underlie the submissions advanced.

The plaintiff’s submissions to the Appeal Panel included the following in support of the plaintiff’s contention of “demonstrable error in PIRS rating Category ‘Employability’”:

The Appeal Panel extracted at length the reasons of the AMS. It recited that it had determined that it was not necessary for the worker to undergo further medical examination. It noted that the parties’ written submissions had not been repeated in full but stated that they had been considered (para 11). It recited the plaintiff’s submission that:

It noted Ms Mead’s submission that:

The dispositive reasoning of the Appeal Panel was as follows:

The passages in the Medical Assessment Certificate “extracted above” referred to in paragraph 33 of the Appeal Panel’s reasons were the passages quoted at [30] above.

The Appeal Panel was correct in saying that the plaintiff had submitted to it that the AMS should have found that the worker fell within Class 2 because she could work fulltime. The plaintiff does not now say that the Appeal Panel erred in accepting the AMS’ analysis that merely because Ms Mead could work in a fulltime position, she fell within Class 2 rather than Class 3 of the “Employability” category.

One of the plaintiff’s clearly articulated submissions before the Appeal Panel was that there was no evidence that Ms Mead’s work in her position as a Senior Planner with the NDIS Authority required less skill and intellect than her work as a Manager case worker with FACS.

The AMS clearly found that Ms Mead’s work with the NDIS did not require the same degree of skill and intellect as her pre-injury position, as well as not requiring managerial responsibility. He reached that conclusion after a consultation with her. It is true that the AMS did not set out what were the matters of primary fact that led him to that conclusion. But the appeal to the Appeal Panel was not based upon an asserted failure by the AMS to set out the facts on which the assessment was based (s 325(2)(d)). The ground of appeal was that there was no evidence for the AMS’ conclusion.

The Appeal Panel was aware of the submission and said (at [32]) that the AMS was obliged to consider employability using his own clinical judgement. In dealing with the submission, it cited the observations of Harrison AsJ in Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140 as quoted above at [37], as to the importance of clinical observation and assessment of matters raised in consultation.

The Appeal Panel appears here to be stating that the AMS’ conclusion that Ms Mead’s duties in her new fulltime position did not require the skill and intellect of her pre-injury employment was based upon his consultation with her.

The plaintiff submitted that no such conclusion was open because the AMS was required to specify the facts upon which his assessment was based (s 325(2)(d)). The plaintiff submitted that the AMS’ conclusion was part of his assessment and that he had not stated any primary fact on which that assessment was based.

But the AMS simply stated that the facts upon which his assessment was based were those contained in the documents provided to him and his clinical examination. No issue was raised before the Appeal Panel, nor before me, as to whether that was a sufficient statement (T26). It is unnecessary for me to express a view on that question.

It is not possible to say that there was no evidence to support Dr Anderson’s finding that Ms Mead’s new position with the NDIS did not require the same degree of skill and intellect as her pre-injury position without knowing what Ms Mead told Dr Anderson.

The Appeal Panel actively engaged with the submission by citing the observations of Harrison AsJ in Glenn William Parker v Select Civil Pty Limited as to the importance of the AMS’ consultation with the claimant and deferring to his clinical judgement.

In any event, if it were to be assumed that there was no evidence to support Dr Anderson’s view that Ms Mead’s new employment did not require the same degree of skill and intellect as her pre-injury employment, it would be equally true to say that there was no evidence that her duties in her position with the NDIS required comparable skill and intellect to that of her pre-injury job. The descriptors of mild impairment in Class 2 of scale 6 (Employability) describe two cases that would fall within the class of mild impairment. The first is if the worker is able to work fulltime but in a different environment from his or her pre-injury job where the duties required comparable skill and intellect as those of the pre-injury job. The second is if the worker could work in the same position but not for more than 20 hours per week. It was clear that Ms Mead did not fall within the second descriptor. The question would be whether she fell within the first. If Dr Anderson had no evidence as to the skill and intellect required of Ms Mead’s job with the NDIS, then he would have had no evidence that she was able to work fulltime in a different environment in a job that required comparable skill and intellect, except for his clinical assessment of her employability.

On that basis, Dr Anderson would have had no assistance from external evidence of what work Ms Mead could or could not do to decide whether in assessing Ms Mead’s psychiatric impairment in relation to the employability scale, her impairment should be characterised as mild or moderate. That would not relieve him from the task of making the assessment. If the parties did not provide sufficient documentary information to allow an assessment of the descriptors, it was still incumbent upon the AMS to determine whether Ms Mead’s psychiatric impairment in relation to her employability should be characterised as mild or moderate.

Accordingly, even if the Appeal Panel did not consider that Dr Anderson’s assessment (that the duties of Ms Mead’s position with NDIS did not require comparable skill and intellect to those of her duties as a Manager Caseworker with FACS) was based upon his consultation with Ms Mead, there would be no error (jurisdictional or otherwise) in the Appeal Panel’s conclusion that nonetheless, Dr Anderson’s determination was based upon his clinical judgement following that consultation. [2]

For these reasons, the Appeal Panel did not fail to engage actively with the submissions advanced by the plaintiff. The summons should be dismissed with costs.