State of New South Wales (NSW Department of Education) v Kaur

1. [1]

   The State of New South Wales in its capacity as the employer of the first defendant, Dr Kaur, seeks judicial review of the legality of the decision of a Medical Appeal Panel constituted under s 328 Work Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act") made on 23 July 2015 dismissing its appeal from a decision of an Approved Medical Specialist and confirming the Medical Assessment Certificate issued by him.

Factual background

1. [2]

   Dr Kaur worked as a high school teacher for the Department of Education. She suffered a psychological injury due to the nature and conditions of her employment over a period of time leading up to 15 February 2011(referred to as the nominated date of injury). Liability to pay compensation had been disputed by the Department on a number of grounds including those provided by s 9A and s 11A of the Workers Compensation Act 1987 ("the 1987 Act").

2. [3]

   Those issues merged in a Certificate of Determination giving effect to consent orders agreed between the Department and Dr Kaur. The consent orders are set out in full at page 262 of the exhibit to the affidavit of Mr Christopher Lehmann affirmed on 9 November 2015 and read in support of the application. The orders provided for: the payment of weekly compensation for what is conventionally referred to as a closed period; payment of medical expenses up to an agreed amount; and the agreement that the arbitrator who entered the consent orders would request the registrar to refer the matter to an approved medical specialist "to assess any [whole person impairment] (primary psychological injury) as a result of injury 15/02/2011 (nominated date of injury)".

3. [4]

   Acting under s 321(4) of the 1998 Act, a delegate of the Registrar of the Workers Compensation Commission of New South Wales (“the Commission”) duly referred the medical dispute for assessment.

The medical assessment certificate

1. [5]

   Under s 319 of the 1998 Act, “medical dispute” is defined to mean a dispute between a claimant for compensation and an employer or its insurer about any of the matters set out in the succeeding paragraphs of the section. Relevant, for present purposes, are the following:

2. [6]

   In accordance with the usual practice, the parties to the dispute provided the Approved Medical Specialist appointed to carry out the assessment with a brief of relevant medical material for, in this case his, consideration. Amongst the material provided by the Department were two reports of a consultant psychiatrist, Dr Adam Martin, dated 29 June 2012 and 27 November 2013 respectively. It will be necessary for me later in these reasons to make some brief reference to Dr Martin's opinion.

3. [7]

   The Approved Medical Specialist, Dr John J Baker, assessed the total whole person impairment due to Dr Kaur's psychological injury at 17 per cent. He made a discount under s 323 of the 1998 Act for the proportion of impairment due to a previous injury, condition or abnormality on the statutory assumption of 10 per cent, issuing a certificate that the degree of whole person impairment resulting from Dr Kaur's injury was 15 per cent.

The medical appeal

1. [8]

   The Department made due application to the Registrar of the Commission under s 327 of the 1998 Act to appeal from the medical assessment, which was granted. The Registrar chose an Appeal Panel under s 328 of the 1998 Act consisting of Mr John Windeyer, arbitrator, Dr Gregory Steel and Dr Robert Gurtler, approved medical specialists. Among the grounds which the registrar found to have been made out was the question whether the Approved Medical Specialist erred in not considering whether the applicant's psychological condition was a secondary psychological injury caused by orthopaedic problems, probable sleep apnoea, and anger and distress resulting from those physical ailments as referred to by the Department’s qualified expert Dr Adam Martin in his report dated 27 November 2013. The grounds of appeal, with respect, amplified this complaint in various ways.

2. [9]

   That ground of appeal and its various amplifications invoked the provisions of s 65A of the 1987 Act which is in the following terms:

3. [10]

   As is readily apparent from its terms, s 65A has the effect that no lump sum compensation is payable "in respect of permanent impairment that results from a secondary psychological injury". Sub-section (5), defines secondary psychological injury as meaning “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury."

Dr Martin’s opinion

1. [11]

   Essentially, Dr Martin's opinion was that the psychological condition from which Dr Kaur suffers was due to a number of different factors. They included previous significant life stressors. As is common ground, Dr Kaur previously suffered from a psychiatric or psychological illness requiring treatment from a clinical psychologist and by way of prescription medication because of her marriage breakdown and divorce. Although she was able to work when she commenced with the department, she was apparently still taking the medication Zoloft. Moreover, as she had other, physical ailments including obesity, osteoarthritis, especially effecting one of her knees; and sleep apnoea, Dr Martin formed the view that those physical conditions and the chronic pain and stress they caused was partly responsible, and in a large measure, for the psychiatric illness he diagnosed. For instance, in his report of 27 November 2013 (page 252 of exhibit CL1), he expressed the following view:

2. [12]

   It was argued that this evidence raised the question of whether her condition was a secondary psychological injury, at least to the extent to which it was secondary to her physical ailments. For the purpose of the argument it was submitted ( at least before me) that the phrase “physical injury” in s 65A, was not limited to physical work related injury within the definition of s 4 of the 1987 Act but extended to any physical (as opposed to psychological) injury or condition whether pre-existing or arising subsequently and whether or not the injury was work related or compensation was payable for its effects.

The appeal panel decision

1. [13]

   The Appeal Panel rejected the Department’s argument saying (at paragraphs 34 to 37):

2. [14]

   The gravamen of the reasoning of the Appeal Panel in relation to that argument was that questions concerning the application of s 65A to a case were matters within the purview of the Workers Compensation Commission of NSW rather than part of a medical dispute within the exclusive jurisdiction of an approved medical specialist or, in due course, an appeal panel. Accordingly, the Panel rejected the Department's argument based upon the operation of s 65A.

The arguments of the parties

1. [15]

   It is argued by the Department before me that this reasoning betrays error of law on the face of the record and jurisdictional error by way of constructive failure to exercise jurisdiction.

2. [16]

   Dr Kaur responds that, properly understood, Dr Martin's reports did not engage s 65A so that, whether or not a decision under that section was one for the Commission and not for an approved medical specialist was correct, any error in that regard was not dispositive of the medical appeal. Alternatively it was argued that the Appeal Panel's decision on that question of law was correct.

3. [17]

   The Department also said that the Approved Medical Specialist had entirely failed to consider the issue of whether the injury was a secondary psychological injury. They argued that the Approved Medical Specialist’s failure to consider that matter resulted in a denial of natural justice in as much as he had failed to consider an argument seriously advanced by the Department and appearing on the papers provided for his consideration in undertaking the assessment.

4. [18]

   Dr Kaur joined issue on this matter.

Decision

1. [19]

   Dr Martin's reports, properly understood, did not give rise to any question under section 65A of the 1987 Act. The matters which I have summarised from his report and those passages I have quoted are only examples of other statements in the reports to the same or similar effect. They raised a question about whether any proportion of the whole person impairment assessed as resulting from Dr Kaur's psychological injury was due to any previous injury, or pre-existing condition or abnormality. As I have said, the Approved Medical Specialist decided that issue in favour of the Department. Because of the difficulty of making an assessment of the contribution from those other matters, he adopted the statutory assumption of 10 per cent for the purpose of the deduction: s 323 (2) of the 1998 Act.

2. [20]

   Dr Martin’s reports do not raise the question whether Dr Kaur’s psychological injury is a secondary psychological injury. I have come to this conclusion because I am of the view that the definition of secondary psychological injury in s 65A (5) of the 1987 Act should be read as meaning a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical work related injury. That is to say, a physical injury within the meaning of s 4 of the 1987 Act. This conclusion follows from a consideration of s 65A as a whole. It is quite clear that where “injury” appears in the phrases, “secondary psychological injury”, “primary psychological injury” and “physical injury” it is referring to an injury within the meaning of s 4 in respect of which compensation is, but for the provision of s 65A, otherwise payable. One needs to read the 1987 and 1998 Act together as forming part of a single scheme in relation to workers' compensation. Approaching the matter in this way it is clear to me that s 65A of the 1987 Act and s 323 of the 1998 Act, albeit working in harmony as part of a single scheme, have different work to do.

3. [21]

   Accordingly, I am not persuaded that the Appeal Panel made the first error contended for by the Department. I should say, however, that it follows from this reasoning that if the Appeal Panel made an error of law in its expression of legal opinion at [37], that error of law was not dispositive of the appeal.

4. [22]

   Given that I am of the view that the particular question of law does not arise, it perhaps is unnecessary for me to express any opinion about the correctness of the Appeal Panel's legal view. However, given the detailed argument that was addressed to me by counsel, and lest the matter go on appeal, I should point out that in my judgment, the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act. In my opinion this follows from the judgment of the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [109] – [111] by Emmett JA, with Meagher and Ward JJA agreeing. At [111] his Honour said:

5. [23]

   Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase, "a disentitling provision". This is made clear in my view by the language "no compensation is payable" at the outset of s 65A (1). Similar language appears in s 9A and s 11A which are clearly recognised as "disentitling provisions". It is true that s 65A is not found in a division dealing with general liability to receive compensation, as s 9A and s 11A are. Nonetheless, the language of s 65A is concerned with substantive rights rather than questions of the process of the quantification of the entitlement to monetary compensation dealt with in the other provisions of Division 4 of part 3 of the 1987 Act.

Decision on the second question

1. [24]

   Turning to the second substantial ground of attack on the legality of the appeal panel's certificate, I am of the view that there was no error in the Approved Medical Specialist's treatment of the opinions of Dr Martin. In my view, reading his certificate as a whole, he dealt fairly with the issues that Dr Martin had raised. Even if I am wrong about this there are in my mind other reasons the second ground has not been made out. Given that there has been an appeal to the Medical Panel, the question for this Court is not about the certificate issued by the Approved Medical Specialist. Rather, it is about the legality of the decision of the Appeal Panel: See Wishart v Fraser [1941] HCA 8; 64 CLR 470 at 478 and Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [20],[24] and [54]-[56].

2. [25]

   My reasons for concluding that the Approved Medical Specialist did not fall into the error of law in this regard are slightly different to those expressed by the Panel. In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:

3. [26]

   Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

4. [27]

   Bearing that requirement in mind, the Medical Appeal Panel were correct to decide that the Approved Medical Specialist's statement of his reasons for the certificate he provided disclosed no error of fact or of law.

5. [28]

   I am not persuaded that the Department has made out jurisdictional error or error on the face of the record in this case.

6. [29]

   Accordingly I order that the summons filed on 16 October 2015 is dismissed.