State of New South Wales v Hill

1. [1]

   By an Amended Summons filed in Court by leave on 23 April 2018, the plaintiff, which I will refer to as the Department, seeks judicial review of a medical assessment certificate given by a Medical Appeal Panel appointed under s 328 of the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) (“WIM Act”) (“Appeal Panel”) on 5 June 2017. The Appeal Panel, constituted by Arbitrator Catherine McDonald, approved medical specialist, Dr Robert Gertler and approved medical specialist, Dr Lana Kossoff confirmed the medical assessment certificate given at first instance by approved medical specialist Dr Wasim Shaikh on the 17 January 2017. Dr Shaikh had assessed that the first defendant, whom I will refer to as Ms Hill, suffered a 17 per cent whole person impairment resulting from psychological injury received in the course of her employment with the Department as a teacher. This injury has a deemed date of injury of 6 August 2015. The Department seeks orders in the nature of, first, certiorari quashing the panel’s certificate and, secondly, mandamus remitting the matter for the medical appeal to be determined according to law.

2. [2]

   The sole issue dividing the parties before the Appeal Panel was whether a deduction should have been made from the assessed impairment for a proportion of the impairment that was due to previous injury, or any pre-existing condition or abnormality in accordance with s 323 of the WIM Act.

3. [3]

   In the Summons the Department relied upon five grounds of what was said to be jurisdictional error. In the alternative it argued the same matters constituted error of law in the face of the record of the proceedings before the Appeal Panel.

4. [4]

   Before detailing the asserted errors, it will be necessary to set out a summary of the factual background, statutory provisions and the reasons provided by the Appeal Panel.

Evidence

1. [5]

   The evidence before me consisted of the affidavit of Mr Brad Quillan sworn on 31 October 2017. Mr Quillan is the solicitor with carriage of the matter in the office of the solicitors for the Department. His affidavit attaches the material which was before the Appeal Panel, the Appeal Panel’s statement of reasons for its decision, its medical assessment certificate confirming Dr Shaikh’s certificate, and a certificate of the determination of the Workers Compensation Commission (“the Commission”) (Arbitrator Farrell) ordering the Department to pay lump sum compensation to Ms Hill in the sum of $40,120.00. Although no order seeking to set aside the Commission’s decision was sought in the Amended Summons and it was not mentioned in oral submissions, I am of the view that if the challenge to the Appeal Panel’s decision is made good, the decision of the Commission must be set aside because there will remain a subsisting medical dispute about the degree of permanent impairment suffered by Ms Hill which must be resolved by medical assessment before her legal entitlements can be determined: s 321 of the WIM Act. The Commission is named as the third defendant in any event.

2. [6]

   The Appeal Panel and the Commission have, conventionally, filed submitting appearances through the Crown Solicitor’s Office save as to costs.

Factual Background

1. [7]

   Ms Hill has been a teacher working mostly in the Government Service since her graduation from the University of New England in 1984. From an unspecified date in 2012 until 6 August 2015 she was employed as the Head Teacher of Secondary Studies at Walgett Community College High School. Although this statement is a matter of some controversy between the parties, Ms Hill said that she was healthy when she commenced this employment and for the first two and a half years “everything went well” (Affidavit, Brad Quillan, 31 October 2017 at par 17 of Annexure “A”). Things changed in Term 4 of 2014 when there was a change of leadership at the school. Thereafter on a daily basis she was subject to “violence, threatening and intimidating behaviour, abuse and swearing from students”. Her car was vandalised a number of times. Complaints to parents (and police) made the abuse worse. Her superiors were not supportive and she felt she was being harassed by them.

2. [8]

   The situation worsened in Term 1 of 2015. She dreaded going to work because her anxiety was causing nausea and diarrhoea. She also feared for her safety at school and in town in case she came across abusive students.

3. [9]

   On or about 6 August 2015, she informed the Deputy Principal that she had a doctor’s appointment that day and would need to absent herself from school. She was suffering from flu symptoms as well as anxiety. She said the Deputy Principal abused her for making a medical appointment on a work day and she was unable to cope and ceased work.

4. [10]

   She attempted to resume work in September 2015, but was unable to last longer than 3 days.

5. [11]

   She suffered depressed mood, anxiety, loss of interest in activities and developed suicidal ideation. Living in a remote part of the State, psychological treatment was restricted to a fly-in, fly-out psychologist initially and then telephone counselling. Her General Practitioner did not prescribe antidepressant medication.

6. [12]

   Compensation was paid under Workers’ Compensation Act 1987 (NSW) (“Compensation Act”). At the request of her solicitors, Ms Hill was examined by Dr Robert Hampshire, then practising as a psychiatrist, for the purpose of assessing any whole person impairment resulting from her psychological injury. He assessed the degree of permanent impairment at 22 per cent. A claim for lump sum compensation was made on the Department’s insurer which arranged to have Ms Hill assessed by psychiatrist, Dr Glen Smith. In substance Dr Smith agreed with Dr Hampshire’s diagnosis, with one potentially significant difference to which I will return, but given the paucity of treatment Ms Hill had received, perhaps due to her remote place of residence, Dr Smith regarded her condition as neither stabilised nor reaching maximum medical improvement. For this reason he was unable to assess the degree of permanent impairment. He recommended “assertive treatment”.

7. [13]

   Based on Dr Smith’s assessment, the insurer declined the claim for lump sum compensation for whole person impairment. Ms Hill’s solicitors filed an application to resolve the dispute on her behalf in the Workers’ Compensation Commission on 15 November 2016.

Medical evidence of the parties

1. [14]

   In his report of 2 May 2016, Dr Hampshire recorded a detailed history of the psychologically stressful circumstances Ms Hill was subjected to leading up to ceasing work in August 2015. As the Appeal Panel subsequently recognised, he incorrectly recorded that “Ms Hill has never had any prior psychiatric illness”. In his opinion, Ms Hill was suffering from both a Post-Traumatic Stress Disorder (“PTSD”) involving panic attacks and a major depressive disorder. As I have said, he assessed the whole person impairment at 22 per cent.

2. [15]

   Dr Smith, for the Department, arrived independently at and agreed with Dr Hampshire’s diagnosis. However, he expressed himself in terms of “a relapse of major depressive disorder and the development of PTSD according to the criteria of DSM-5” (my emphasis). In his opinion “the main contributing factor” to Ms Hill’s condition was the nature and conditions of her employment at Walgett Community College.

3. [16]

   Dr Smith’s history was different from Dr Hampshire’s. Under the heading Past Psychiatric History, he recorded that Ms Hill told him of anxiety and depression after the birth of her second child which resolved after five months and depression in 2010 for which she saw a psychiatrist, Dr Jarrett Johnston who prescribed medication. The latter depression was also a work injury.

4. [17]

   Dr Smith was also provided with a copy of the clinical notes of Ms Hill’s treating General Practitioner in Lightning Ridge. It may be relevant to record that these documents had been printed on 4 March 2016. From that he recorded the following information which appeared under the heading ‘Inactive Past History’:

Decision of the AMS

1. [18]

   Ms Hill applied for resolution of this dispute by assessment by the AMS on 16 November 2016 in accordance with s 288 WIM Act. In its reply dated 7 December 2016, the Department identified the issues as including:

2. [19]

   Ms Hill was assessed by Dr Shaikh on 16 January 2017. In his reasons for his certificate dated 17 January 2017 he received a full history of Ms Hill’s complaints including the relevant past history of seeing Dr Johnson on six occasions in 2010 with depressive symptoms which were treated with medication. She said she was then off work for about 12 months. Ms Hill also gave the history of suffering depressive symptoms after the birth of her son. She reported being “well” at the commencement of her employment with the Walgett Community College which was sometime in 2012. Dr Shaikh diagnosed Major Depressive Disorder. He did not diagnose PTSD. He assessed Ms Hill’s whole person impairment due to this psychological injury at 17 per cent. He was required to answer the following question:

Appeal

1. [20]

   The Department filed an appeal against the decision of the Approved Medical Specialist on 8 February 2017 on the sole ground that the medical assessment certificate contained a demonstrable error: s 327(3)(d) of the WIM Act. In written submissions in support of the application the Department referred to the history as recorded by Dr Smith and the “past inactive history” in the clinical records from the Lightning Ridge Medical Practice, so far as the latter was relevant to her psychological state, including the record from 12/03/2009 of Bipolar Affective Disorder. It was also argued that her statement to the effect that “everything went well” at Walgett Community College for the period following her appointment was contradicted by the record by a report of depression on 1 February 2012. The Department argued that the approved medical specialist had failed to apply s 323 WIM Act and that “a substantial deduction would be appropriate and correct in relation to the effect the prior psychological symptoms has had on the respondent worker’s current psychiatric presentation”. The Registrar must have been satisfied in terms of s 327(4) of the WIM Act that, “on the face of the application” and the submissions at least one ground of appeal “has been made out”.

2. [21]

   An Appeal Panel exercises powers under s 328 of the WIM Act. By s 328(2) “the appeal is to be by way of review of the original assessment, but the review is limited to the grounds of appeal on which appeal is made”. Under s 328(5) the Appeal Panel is empowered to confirm the original certificate or revoke it and issue a new certificate “as to the matters concerned”.

3. [22]

   In written submissions filed on behalf of Ms Hill, reliance was placed upon Cole v Wenaline Pty Limited [2010] NSWSC 78 (“Cole”) at [30], Schmidt J and my decision in Ryder v Sundance Bakehouse [2015] NSWSC 526 (“Ryder”) at [45]. It was also argued that “inactive past history” in the Lightning Ridge Clinical Notes referred to conditions which “were not causing the respondent worker any problems at the time of the current injury”.

4. [23]

   The essential part of the Appeal Panel’s reasoning is set out at paragraphs [25] to [32] of its statement of reasons:

Legal Considerations

1. [24]

   Section 323 WIM Act is in the following terms:

2. [25]

   In Cole Schmidt J said at [30]:

3. [26]

   In Ryder at [45] and [54] I said:

4. [27]

   The Department accepted these statements at law were correct.

The grounds of review

1. [28]

   In written and oral submissions Dr Blount for the Department argued the Appeal Panel’s decision was vitiated by five grounds of jurisdictional error.

2. [29]

   Ground 1 related to paragraph [29] of the Appeal Panel’s decision. Dr Blount identified this ground as an example of the Appeal Panel misdirecting itself, or asking itself the wrong question: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 317; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]. The portion of [29] criticised is the following statement:

3. [30]

   Mr Romaniuk SC and Ms Grotte for Ms Hill argued that the observation was a mere statement of fact and in seeking to impugn it, the Department was inviting the Court to engage in impermissible merits review.

Consideration of Ground 1

1. [31]

   I accept that Dr Smith was no more than picking up and applying the language of the statute in assessing from a medical point of view that Ms Hill’s psychiatric condition from August 2005 was a compensable injury. I also accept what is implicit in the argument, that employment as a main contributing factor leaves open the semantic and legal possibility that there may yet be other if lessor contributing factors. The use of the statutory phrase did not of itself exclude the hypothetical possibility that had Dr Smith turned his mind to the question of whole person impairment, he might have, consistently with his opinion about the injury, concluded that a portion of the impairment was due to the previous injury, pre-existing condition or abnormality.

2. [32]

   Equally an opinion about the occurrence of work injury may say nothing about what Dr Smith’s opinion might have been about the s 323 question. However, I do not read the Appeal Panel’s statement looking at it in the context of the whole of the reasons as constituting any decision or conclusion of law. The observation has the flavour of a mere comment made in passing. The expression “might suggest” is acutely non-determinative language constituting no more than the acknowledgment of a possibility without deciding it. To the extent to which the sentence standing alone may be capable of suggesting error, it could rise no higher than factual, non-jurisdictional error. I reject this ground.

Ground 2

1. [33]

   Dr Blount characterised the second error for which he contended as illogical and irrational reasoning in attempting to reconcile Ms Hill’s self-reported history that she was well when she commenced work at Walgett Community College (sometime in 2012) with the note in the “inactive past history” section of the Lightning Ridge Clinical Notes that she complained of depression on 1 February 2012. Reliance was placed upon Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18 (“Li”). It was argued that the irrationality and illogicality consisted of confusing the note entered in the inactive section with the disease which must have been active when the note was made. The note was said to be objective evidence of active disease incontrovertibly at odds with Ms Hill’s self-report.

2. [34]

   Mr Romaniuk argued that it was fallacious to approach the separate components of the Appeal Panel’s reasoning path in the manner adopted by the Department. At the very least paragraphs 30 and 31 needed to be read together. When that is done, it was submitted that it was clear the Appeal Panel had properly directed itself as to law. This was obvious when one bore in mind the direction in the first sentence at paragraph 30, “Section 323 of 1998 Act requires the AMS to make a deduction for any proportion of the impairment that is due to a pre-existing injury, condition or abnormality.” The Appeal Panel thereafter was reviewing the evidence. If there was error in accepting Ms Hill’s history and making its own assessment of the relevance of the previous history of a Major Depressive Disorder that was a factual error within the jurisdiction not enlivening the Court’s power to intervene.

Consideration of Ground 2

1. [35]

   There is force in Mr Romaniuk’s submissions and they invoke the well- established “beneficial construction” approach to consideration of administrative decisions which obtained the imprimatur of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. The plurality said at 272 that the beneficial construction approach was well settled for the reason that:

2. [36]

   In plainer language Kirby J expressed the same principle this way, in the first of his eight propositions at 291:

3. [37]

   Two relevant considerations arise out of the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”). Although concerned with Victorian legislation, the High Court’s approach has frequently been applied to New South Wales legislation: for example Zahed v IAG Ltd (t/as NRMA Insurance) [2016] NSWCA 55; (2016) 75 MVR 1. The two matters of particular significance relate to the nature of the Appeal Panel’s functions. Essentially the function of the Appeal Panel “… is to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise”: Wingfoot at [47]. The second point concerns the content of a medical panel’s reasons, explained at [55]:

4. [38]

   Considering these principles, it needs to be borne in mind that the Appeal Panel was directing itself to the question of whether there should be any s 323 deduction at the time of its decision in 2017. There was no evidence as to when in 2012 Ms Hill commenced work at Walgett Community College. It was not irrational for the Appeal Panel to accept her statement that she was well when she commenced at Walgett Community College as being not inconsistent with the note of the General Practitioner which probably should be read as at March 2016 that her past history was inactive. Moreover, considering paragraph 31, it is obvious that the Appeal Panel was applying its own expertise to the question whether a previous history of Major Depressive Disorder was a pre-existing condition which necessitated a deduction. Essentially, the reasoning was that the past history did not necessarily fall within the language of s 322 of the WIM Act, meaning a contrary decision involved no error of law: Hope v Bathurst City Council (1980) 144 CLR 1 at [10]; Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156.

Grounds 3 and 4

1. [39]

   Grounds 3 and 4 concern aspects of paragraph 31. The first argument is the statement in the last sentence of the paragraph that the Department’s argument is not supported by medical opinion is wrong because of Dr Smith’s qualification of his diagnosis of major depressive disorder by use of the word “relapse” or “recurrent”. It was argued that it was implicit in Dr Smith’s use of “relapse” or “recurrent” that there was a pre-existing condition of Major Depressive Disorder. And overlooking this matter amounted to a failure to take into account a mandatory relevant consideration i.e. Dr Smith’s expression of opinion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend”).

2. [40]

   Again, Mr Romaniuk submitted this was no more than an invitation to indulge in merits review. He also made the point that because of the approach Dr Smith took, that expert never addressed or turned his mind to the question of a deduction under s 323 of the WIM Act. In any event the Appeal Panel was able to make its own assessment of the significance of the medical history.

3. [41]

   So far as Ground 4 was concerned, Dr Blount argued that the Appeal Panel failed to give adequate reasons for the finding that Ms Hill’s previous major depressive disorder left her with no more than a low-grade vulnerability. Learned counsel accepted that a “low-grade vulnerability does not qualify as a pre-existing condition for the purpose of s 323” of the WIM Act. He referred to Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (“Cullen”) at [46], Beech-Jones J.

Consideration of Ground 3 and 4

1. [42]

   The difficulty in relation to the use by Dr Smith of the expression “recurrence” or “relapse”, as Dr Blount conceded, is that those terms are not medical terms of art implying any particular on-going pathological process such as might inure whether symptoms are manifest or not. Even if one accepted that the Major Depressive Disorder was a condition which recurred, and Dr Smith used “relapse” and “recurrence” apparently interchangeably, it does not necessarily follow that a portion of any permanent impairment was due to a previous injury, pre-existing condition or abnormality. The Appeal Panel was entitled to treat the generality of Dr Smith’s opinion, of which its reasons show that it was well aware, as not providing evidence it could evaluate about the s 323 issue. Moreover, and fundamentally as the High Court made clear in Wingfoot at [47] the Appeal Panel may choose to utilise the medical opinion the parties have put before it, but it is not bound to; its function is not to adjudicate upon other competing medical opinions, but to form its own. This disposes of the Peko-Wallsend point.

2. [43]

   So far the Appeal Panel’s reasons are concerned for forming the view that Ms Hill was subject to a low-grade vulnerability because of her previous conditions that, in my opinion, was a matter the Appeal Panel was entitled to decide by applying its own medical experience and expertise. As Basten JA said in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (“Vegan”) at 122 of the obligation of a medical panel to give reasons:

Ground 5

1. [44]

   Finally, Dr Blount relied upon legal unreasonableness as explained in Li. He laid emphasis upon subsequent decisions of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (“Singh”), Allsop CJ, Robertson and Mortimer JJ; and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (“Stretton”). Emphasis was laid upon the species of legal unreasonableness which depends on unreasonableness of outcome even though it is not possible to precisely identify underlying error: Singh at [44]. Dr Blount emphasised that the Full Federal Court recognised that a court’s reasoning process when reviewing a decision for legal unreasonableness “will inevitably be fact dependent” but not involving the substitution (by the Court) of its own judgment for that of the decision-maker: Stretton at [61] (Griffith J). Dr Blount argued given Ms Hill’s past history the Appeal Panel’s decision declining to make a deduction was wholly unreasonable bespeaking latent error.

2. [45]

   The argument effectively was that as: Ms Hill had a past history of depression, nervous breakdown, Bipolar Affective Disorder and further depression; these health issues had gone untreated (or at least not satisfactorily since August 2015); and the history given by Ms Hill was at odds with the so-called objective history, it was plainly unreasonable for the Appeal Panel to refuse a s 323 deduction.

3. [46]

   Mr Romaniuk maintained that these arguments amply demonstrated that the Court was being invited to substitute its own opinion for the opinion of the Appeal Panel.

Consideration of Ground 5

1. [47]

   In resolving this question it is well to bear in mind that the unanimous court in Singh said at [47]:

2. [48]

   In Stretton, Wigney J reminds said (at [92]):

3. [49]

   It is also important to bear in mind that the question of whether a s 323 deduction should be made from an assessment of whole person impairment is not the exercise of a discretionary power. Rather, it is an evaluative judgment involving the application of a statutory test to facts established by material properly before the Appeal Panel, involving the application by the Panel of its medical expertise to the ultimate decision. Where their reasons as expressed are not palpably illogical or irrational it will be difficult for a plaintiff to demonstrate the relevant jurisdictional error.

4. [50]

   It seems to me that, as I have said, it was not incumbent upon the Appeal Panel to accept a prior history of Bipolar Affective Disorder, especially when Dr Smith who questioned Ms Hill closely about it accepted the reliability of her history that she had not suffered any such condition. Moreover, both parties were content for the Appeal Panel to proceed on the papers. No application was made for an oral hearing at which, say, Ms Hill might have been cross-examined about her history, bearing in mind that one member of the Appeal Panel was a legally qualified arbitrator. The Appeal Panel was not bound to treat the matters contained in the past inactive history in the Lightning Ridge Clinical Notes as “objective evidence”. It certainly was not obliged to treat those scant notations as incontrovertible facts. The Appeal Panel worked on the basis that there was a past history of psychological injury or condition and it assessed the material available to explain why it came to the conclusion that it was not satisfied that any portion of the whole person impairment was due to either a previous injury or a pre-existing condition or abnormality. I am not satisfied that that conclusion was legally unreasonable or that there was some important error of process undermining it. As I have attempted to explain in my view there is an “evident, transparent and intelligible justification for the decision”: Li at [76] and [105].

5. [51]

   For these reasons the summons must be dismissed.

6. [52]

   My orders are:

   1. (1)

      Proceedings dismissed;

   2. (2)

      Noted the parties have reached an agreement as to costs.