Secretary, Department of Communities and Justice v Hammond

1. [1]

   In February 2015 Ms Hammond suffered an injury to her left ankle in the course of her employment. She later claimed lump sum compensation under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). A medical dispute about injury to her lower left extremity, scarring and lumbar spine was referred for assessment. Ms Hammond claimed 29% whole person impairment, but in May 2020 she was assessed to have suffered 15% impairment.

2. [2]

   Both Ms Hammond and the Department appealed. The appeal panel determined that she should be re-examined by one of its members, Dr Stephenson and he later produced a report which the panel quoted in its November 2020 decision. There the appeal panel upheld the appeal and issued a new certificate, having determined that Ms Hammond had suffered 35% whole person impairment, adopting Dr Stephenson’s report and findings.

3. [3]

   The Department sought judicial review of the appeal panel’s decision, contending that the panel had failed to apply the applicable statutory guidelines; had failed to give required reasons for its decision; and had made a decision which went beyond the scope of the parties’ medical dispute. This resulting in jurisdictional error which warranted its decision being set aside.

4. [4]

   Initially Ms Hammond disputed that the panel had so erred. But in July 2023 the parties agreed that consent judgment should be entered in the Department’s favour, setting aside the panel’s decision and the certificate it had issued and remitting the matter to the President of the Personal Injury Commission of New South Wales, who had entered a submitting appearance, for the matter to be dealt with by a differently constituted panel, according to law.

5. [5]

   Those orders can only be made if the Court is independently satisfied that it has jurisdiction to make them. That depends on the existence of an error of law that appears on the face of the record of the proceedings, which gives rise to the jurisdiction to quash the panel’s decision: s 69 of the Supreme Court Act 1970 (NSW).

6. [6]

   That was sought to be established by an annexure to the proposed consent orders, by which the two errors which the parties agreed had been made were explained. The annexure provided:

7. [7]

   The affidavits to which reference was made were on the Court file and were also addressed in written submissions which the Department had filed.

8. [8]

   Having considered the parties’ application on the papers, for the following reasons I am satisfied that the orders sought must be made.

9. [9]

   The parties’ medical dispute required consideration to be given to the State Insurance Regulatory Authority Workers Compensation Guidelines (NSW) for the evaluation of permanent impairment, including the guideline which applied to complex regional pain syndrome type 1. That was because there was a dispute about the diagnosis that Ms Hammond suffered that syndrome and if she did, the consequential degree of permanent impairment of her left ankle and irrespective of this, what degree of impairment of her left ankle she had suffered.

10. [10]

    The guideline also required that an assessor use clinical judgment to select the appropriate severity grade and percentage from within the range shown for each grade, with the maximum not to be automatically applied. The applicable range in the case of this syndrome was 29-60%.

11. [11]

    On appeal the panel concluded that the assessor had erred and that one of its members, Dr Stephenson, should re-examine her. He concluded that Ms Hammond did suffer the syndrome and found her deficit to be 60%, but he did not confine his consideration to her ankle. The appeal panel then adopted his conclusions, but the parties agreed, without giving the necessary explanation for why the maximum deficit had been confirmed.

12. [12]

    As well as the injury to her ankle, Dr Stephenson had also considered the degree of impairment Ms Hammond suffered to her left hip, knee, and great toe joints. Those conclusions were also wrongly confirmed by the panel because injury to those joints was not part of the parties’ medical dispute.

13. [13]

    In all those circumstances the parties correctly agreed that the appeal panel’s failures and errors were material, depriving as they did the Department of the realistic possibility of a different outcome, with the result jurisdictional error on the part of the panel, warranting the making of the orders which had been agreed.

14. [14]

    The nature of the obligation to give reasons is oft discussed. A panel must give some explanation for its preference for one conclusion over another, when more than one is open: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWSC 284 at [24] and [121]. A failure to give adequate reasons is an error of law: at [130]. In this case there is no question that a different conclusion about the appropriate value in the available range would have led to a materially different outcome.

15. [15]

    What must be disclosed is the actual path of reasoning which led to the opinion arrived at. In this case, that the maximum value for sensory deprivation had been suffered: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]. That was simply not explained in this case as it needed to be.

16. [16]

    In its reasons, having explained the background to the appeal; the conclusion it arrived at on its preliminary review, that there had been error and that a re-examination was required; and a short indication of what the evidence and submissions advanced were, the panel turned to its findings and reasons. They began with a reference to Vegan and the medical dispute which had been referred to the assessor, before quoting from the assessor’s certificate and explaining the two appeals filed. The appeal panel then quoted the assessor’s reasons for some pages, before returning to the parties’ competing submissions about error.

17. [17]

    The panel’s explanation of the error found was “that the MA had erred in respect of the assessments of the left lower extremity and in respect of CRPS.”

18. [18]

    The panel then turned to Dr Stephenson’s report, which it quoted in its entirety. The panel’s explanation of its conclusions was confined to:

19. [19]

    An appeal panel may adopt the findings of one of its members on re-examination of an appellant. But if the examiner does more than report to the panel those findings, by giving an opinion about the resolution of the matters over which the parties have joined issue on their appeals, the panel will have to do more than just adopt that report, if it is to meet its obligation to give reasons for the opinions it has arrived at.

20. [20]

    Namely, it will have to explain the path of reasoning which led it to conclude that those issues had to be resolved in the way the examining member had considered appropriate.

21. [21]

    Had it done so in this case, the panel may have appreciated that Dr Stephenson was wrong in dealing with anything other than the subject of the medical dispute referred to the assessor. It had earlier noted that was “left lower extremity (ankle-CRPS) scarring and lumbar spine (consequential)”.

22. [22]

    The parties’ dispute did not concern “the combined range of motion loss of all the joints in the left lower extremity” which Dr Stephenson dealt with in his report. He was also in error in approaching the assessment as one requiring these losses to be combined. The panel also did not appreciate that the blunt conclusion that “[s]ensory deficit range is 26% to 60% and here the maximum is 60% lower extremity is the value for sensory deficit in this instance”, could not satisfy the obligation to disclose what had led it to agree with the views Dr Stephenson had reached.

23. [23]

    Adoption of those conclusions had to be explained by the panel exposing the path of reasoning which led it to agree with Dr Stephenson. This it failed to do and accordingly it follows that the consent orders which the parties sought must be made.

Orders

1. [24]

   For these reasons I order that:

   1. (1)

      The Decision and the Statement of Reasons for Decision of the Second Defendant dated 22 November 2022 is set aside.

   2. (2)

      The Certificate of Determination issued by the Third Defendant dated 10 January 2023 is set aside.

   3. (3)

      The medical dispute is remitted to the Third Defendant for determination by an Appeal Panel, differently constituted, according to law.

   4. (4)

      No order as to costs.

   5. (5)

      The hearing listed for 1 August 2023 is vacated.

   6. (6)

      The Court notes the consent statement of the Plaintiff and the First Defendant in the Annexure to these orders.