Collins v Dux Manufacturing Ltd

1. [1]

   HER HONOUR: This is a judicial review of a decision of a delegate of the Registrar of the Workers Compensation Commission (“the Delegate”).

2. [2]

   By summons filed 7 August 2020 the plaintiff seeks an order that the decision of the Delegate dated 7 May 2020 be quashed pursuant to s 69 of the Supreme Court Act 1970 (NSW) and that the Certificate of Determination issued by the Workers Compensation Commission of New South Wales (“the Commission”) on 11 June 2020 giving effect to the decision of the Delegate be set aside.

3. [3]

   The plaintiff is Shirley Collins. The first defendant is Dux Manufacturing Ltd (“the insurer”). The second defendant is the Delegate. The third defendant is the Commission. The second and third defendants have filed submitting appearances. The insurer has conceded grounds 1 and 2 of the summons.

Grounds of judicial review in this court

1. [4]

   The grounds of review are set out in the summons as follows:

   1. (1)

      The Delegate exceeded the jurisdiction committed to him pursuant to s 327(4) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”) by determining the substance of a ground of appeal at paragraph 15 of his reasons.

   2. (2)

      The Delegate exceeded the jurisdiction committed to him pursuant to s 327(4) of the WIM Act by determining the substance of a ground of appeal at paragraphs 22 and 23 of his reasons.

   3. (3)

      The Delegate exceeded the jurisdiction committed to him pursuant to s 327(4) of the WIM Act by determining the substance of a ground of appeal at paragraphs 32 and 34 of his reasons.

   4. (4)

      The Delegate erred in law on the face of the record in failing to find that at least one of the grounds of appeal was made out within the meaning of s 327(4) of the WIM Act in respect of:

2. [5]

   The plaintiff does not make any further submissions on ground 4 in the summons on the basis that the errors asserted in grounds 1 and 2 have been conceded, and those errors, and the error asserted in ground 3, have been made good. The matters addressed by ground 4 will fall to be determined according to law on remitter. As such, it is not necessary to refer to ground 4 further in this judgment.

Background

1. [6]

   On 22 August 2017, the plaintiff received a work-related psychological injury. She made a claim for lump sum compensation for permanent impairment resulting from the injury. She relied on a medical expert opinion of Dr R Rastogi who assessed her as having 19% whole person impairment (WPI) resulting from the psychological injury.

2. [7]

   The insurer relied on a medical expert opinion of Dr Synnott as expressed in his report dated 11 November 2019. Dr Synnott assessed the plaintiff as having 5% WPI.

3. [8]

   The medical dispute in respect of the degree of permanent impairment was referred by the Registrar of the Commission to Professor Glozier, an AMS in relation to psychiatric/psychological disorder.

The statutory scheme

1. [9]

   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 relevantly defined in s 4 as “personal injury arising out of or in the course of employment”.

2. [10]

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

3. [11]

   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, an Appeal Panel. 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. [12]

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

5. [13]

   Section 325 relates to the medical assessment certificate (“MAC”). It reads:

6. [14]

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

7. [15]

   Section 327 of the WIM Act grants parties to a medical dispute (as defined in s 319 of the WIM Act) limited rights of appeal against a medical assessment:

8. [16]

   An appeal may be made only in respect of a matter that is identified as appealable, and on the grounds specified in that section. Here, the plaintiff relied upon s 327(3)(c) and (d), namely that the assessment was made on the basis of incorrect criteria and/or the medical assessment certificate contains a demonstrable error. Matters that are appealable are those as to which an MAC is conclusively presumed to be correct.

9. [17]

   In the present case, the medical assessment was in relation to a psychological/psychiatric injury. I shall briefly set out the relevant guidelines relating to this type of injury.

10. [18]

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

11. [19]

    The Guidelines are set out in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016).

12. [20]

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

13. [21]

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

14. [22]

    Clause 11.12 of the Guidelines provides:

15. [23]

    By way of background, in Ferguson v State of New South Wales [2017] NSWSC 887 (“Ferguson”), Campbell J explained how the PIRS operates within the Guidelines at [14]:

The decision of the AMS dated 10 March 2020

1. [24]

   As to the PIRS ratings, the AMS assessed the following categories:

2. [25]

   The AMS assessed 8% WPI in an MAC issued by the Commission on 10 March 2020.

The application to appeal the Medical Assessment Certificate to the Registrar

1. [26]

   On 7 April 2020, the plaintiff lodged an application to appeal the MAC. As previously stated, the plaintiff relied on the grounds that, firstly, the assessment was made on the basis of incorrect criteria under s 327(3)(c) of the WIM Act; and secondly, that the MAC contained a demonstrable error under s 327(3)(d) of the WIM Act.

2. [27]

   The grounds of appeal before the Registrar were:

   1. (1)

      The AMS’s explanation and reasoning as to the appropriate class in respect of social functioning ought to have resulted in the assigning of class 3 representing moderate impairment rather than class 2 representing mild impairment. It was submitted that the AMS’s reasoning disclosed error, because he expressed disagreement with the assessment by Dr Synnott who gave the plaintiff class 2 for social functioning but then proceeded to assign class 2 for that category (“the social functioning ground”).

   2. (2)

      The AMS erred because he failed to adjust the impairment rating for the effects of the treatment in accordance with clause 1.32 of the Guidelines (“the failure to include an adjustment for the effects of treatment ground”).

   3. (3)

      The AMS erred by assigning class 2 for self-care and personal hygiene in circumstances where the plaintiff is abusing alcohol (“the self-care and personal hygiene ground”).

3. [28]

   As to ground 2 of the appeal before the Registrar, clause 1.32 of the Guidelines states:

The effect of consent of the insurer in this judicial review

1. [29]

   The insurer, being the only active defendant and only contradictor, has conceded grounds 1 and 2 of the Summons with reference to the Court of Appeal decision in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (“Ballas”), and consented to the relief sought in the summons. As previously stated, the two other defendants filed submitting appearances.

2. [30]

   The parties have sought to file consent orders setting out the agreement, but drew the Court’s attention to the principles set out in the judgment of Campbell J in Fraser v AAI Ltd (t/as GIO) [2020] NSWSC 1333 in respect of dealing with uncontested administrative law matters. Consequently, the registrar directed that the plaintiff file submissions in support of the orders sought.

3. [31]

   It is my view that even where the active contradictor consents, it is still necessary for the Court to be satisfied that there was error, and to identify the error which vitiated the administrative decision under review: see also Mackey v CIC Allianz Australia Insurance Ltd [2015] NSWSC 505 (at [3]) per Beech-Jones J.

The decision of the Delegate dated 7 May 2020

1. [32]

   At paragraph 4 of his decision, the Delegate correctly set out his role as “gatekeeper” pursuant to s 324(4) of the WIM Act. Under each ground of appeal, the Delegate set out the parties’ submissions and referred to the decision of the AMS.

2. [33]

   Under the first ground of appeal concerning social functioning, the Delegate stated at paragraph 15:

3. [34]

   As to appeal ground 2, concerning the alleged failure to include an adjustment for the effects of treatment, the Delegate stated at paragraphs 22 and 23:

4. [35]

   Finally, as to the third ground of appeal concerning self-care and personal hygiene, the Delegate stated at paragraphs 32 and 34:

5. [36]

   In this judicial review, it was submitted that the Registrar (at paragraph 15) exceeded his jurisdiction by determining the correctness of the submission by the plaintiff. In relation to ground 1 concerning social functioning, the Delegate exceeded his jurisdiction because that task was for the Appeal Panel to determine, having applied their medical expertise to the issue of whether the AMS had correctly assigned class 2 and what he may have meant when he was analysing the opinion of Dr Synnott. These are matters that require medical expertise and training in the guidelines, which an Appeal Panel has. An Appeal Panel comprises two AMS and a legally-qualified Arbitrator. The Delegate may be any member of staff of the Commission, and is not required to have any qualifications at all. Whether or not a particular delegate has legal or other qualifications is not to the point in construing the jurisdiction conferred by the statute. AMS’s are required to be medical practitioners, and are expected to apply clinical skill and judgement in carrying out their assessments.

6. [37]

   In relation to appeal ground 2 concerning failure to include an adjustment for the effects of treatment, the Delegate made the same error at paragraphs 22 – 23 of his reasons. Again, he used language that was conclusory and determinative of the appeal, rather than looking to whether there was an arguable case of error.

7. [38]

   Further, by his statement at paragraph 22 referred to above, the Delegate exceeded his jurisdiction because he made a final determination of the asserted error despite having no medical expertise and not having had any training in the application of the guidelines in the context of an assessment of the degree of permanent impairment as an AMS would have. Similarly, at paragraph 23 the delegate purported to make a determination of the very subject matter of the appeal.

8. [39]

   The first defendant broadly agrees with these submissions.

9. [40]

   The plaintiff submitted that the same error infects the Delegate’s decision at paragraph 32 and 34, for the same reasons as submitted in relation to grounds 1 and 2. The language used is that of determination, rather than consideration of whether the asserted error is one falling within the grounds available under s 327(3), as the plurality explained in Ballas at [70]-[72], and Emmett AJA emphasised in pellucid terms at [150].

10. [41]

    The plaintiff submitted that the language used by the Delegate has the tone of a final determination and is precisely the same error identified by Bell P and Payne JA in Ballas at [70]-[72], which also concerned an application to the Registrar pursuant to s 327(3) of the WIM Act:

11. [42]

    In relation to appeal ground 1 concerning social functioning, the Delegate stated at paragraph 15, “I do not accept that there is a ‘clear inconsistency’ in the MAC.” In addressing appeal ground 2 concerning failure to include adjustment for the effects of treatment, at paragraph 22 the Delegate stated, “I do not accept that the words ‘in partial remission’ relative to a diagnosis constitute a finding of ‘substantial or total elimination of the claimant’s permanent impairment’. The two are not inconsistent or at odds.” At paragraph 23 the Delegate continued, “The AMS’s reasons are logical and clear.” The insurer has conceded that the Delegate erred in his determination in relation to these grounds.

12. [43]

    As to appeal ground 3 concerning self-care and personal hygiene, at paragraph 32 the Registrar concluded, “[The AMS] was clearly of the view that Ms Collins’ issues with alcohol were a relevant consideration (as is, apparently, the appellant), and determined that due to her ability to function in combination with her alcohol abuse, she fell into class 2. This finding was open on the evidence and the AMS’s reasons are clear and consistent.” The Delegate concluded his comments on this ground at paragraph 34, where he stated, “This ground of appeal is in essence a disagreement with the outcome rather than an identification of appealable error. A difference of opinion is not a demonstrable error.” The insurer has not conceded that the Delegate erred in relation to his reasoning on this ground.

13. [44]

    It is my view that, as in Ballas, the Delegate in these proceedings did not express himself in terms of whether the plaintiff’s grounds of appeal were capable of, in the sense of having the potential to be, made out. In each of paragraphs 15, 22, 23, 32 and 34 of his decision, the Delegate has overstepped this statutory role as gatekeeper by purporting to finally determining the grounds of appeal. These are jurisdictional errors that cannot be remedied by his conclusion at paragraph 37 which repeated the proper legal test as set out at paragraphs 7 to 9 of his decision.

14. [45]

    As the Delegate has exceeded his statutory task in excess of his jurisdiction under the WIM Act, his decision dated 7 May 2020 is quashed. The Certificate of Determination issued by the Workers Compensation Commission on 11 June 2020 giving effect to that decision is set aside. The matter is remitted to the Workers Compensation Commission to be dealt with according to law.

Costs

1. [46]

   The appropriate order is that the parties are to pay their own costs. If the parties seek a different costs order, they have liberty to make submissions within 14 days from the date of this judgment.

Orders

1. [47]

   The Court orders that:

   1. (1)

      The decision of the Registrar of the Workers Compensation Commission dated 7 May 2020 is quashed.

   2. (2)

      The Certificate of Determination issued by the Workers Compensation Commission on 11 June 2020 giving effect to the decision of the Registrar is set aside.

   3. (3)

      The matter is remitted to the Workers Compensation Commission to be dealt with according to law.

   4. (4)

      The parties are to pay their own costs. If the parties seek a different costs order, they have liberty to make submissions within 14 days from the date of this judgment.