Chalkias v State of New South Wales

By summons filed on 26 April 2018, Tom Chalkias (the plaintiff) seeks to have the decision of the Medical Appeal Panel (the Panel) assessing his whole person impairment (WPI) at 7% (the Panel’s decision) set aside on the basis of error of law on the face of the record or jurisdictional error. The summons was filed within time as it was filed within three months of the Panel’s decision: Uniform Civil Procedure Rules 2005, r 59.10.

This Court’s jurisdiction to grant such relief arises pursuant to s 69 of the Supreme Court Act 1970 (NSW). It is not necessary to decide whether either Dr Takyar or the Panel is a “tribunal” within the meaning of s 69(3) and (4) of the Supreme Court Act as their reasons form part of the record since the statute requires the reasons to be set out in the certificate: s 325(2)(c) of the WIM Act; Pham v NRMA Ltd [2014] NSWCA 22; (2014) 66 MVR 152 at [27] (Leeming JA, Tobias AJA agreeing); Mulcahy v NRMA Insurance Ltd [2018] NSWCA 189 at [14] (White JA, Beazley P and Meagher JA agreeing).

The State of New South Wales (the first defendant) is the plaintiff’s employer and opposes the relief sought. The Panel (the second defendant) has filed a submitting appearance.

The summons does not identify the grounds on which the plaintiff challenged the Panel’s decision. However, these appear from the submissions filed by the plaintiff on 14 June 2018. In substance, the plaintiff contended that the Panel failed to find that the original assessment made by Dr Takyar (the Medical Assessor) was made on the basis of incorrect criteria or that the medical assessment certificate contained a demonstrable error and that such a finding was necessary to found the Panel’s jurisdiction to review the certificate issued by the Medical Assessor which reflected the assessment of WPI. The plaintiff also contended, in the alternative, that it was not open to the Panel to make a finding of demonstrable error or incorrect criteria since there was no more than a difference of opinion between the Panel and the Medical Assessor.

For present purposes the facts may be shortly stated.

The plaintiff made a claim for compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the WC Act) on the basis of an injury said to have occurred on 27 November 2012. He obtained a report from Dr Smith, psychiatrist, dated 23 June 2015 who assessed his WPI as 24%. A WPI based on a psychiatric impairment has a number of categories, by reference to each of which a worker is required to be assessed. Dr Smith assessed the plaintiff as grade 3 in the self-care and personal hygiene scale.

It was common ground that on 9 October 2015 Employers Mutual Limited (EML), the first defendant’s agent and workers compensation insurer, issued a notice under s 74 of the WIM Act disputing primary psychological injury. On 20 December 2016 the plaintiff made a claim, relevantly, for lump sum compensation, which had the effect of making the deemed date of injury 20 December 2016. The first defendant arranged for the plaintiff to be assessed by Dr Prior, who, in a report dated 15 May 2017, assessed his WPI at 8%. Dr Prior assessed the plaintiff’s score for the self care and personal hygiene category as grade 2.

On 31 May 2017 the plaintiff lodged an Application to Resolve a Dispute with the Workers Compensation Commission (the Commission) in the approved form. He requested that the degree of his permanent impairment be referred for medical assessment by an Approved Medical Specialist pursuant to s 293 of the Workplace Injury Management Act 1998 (NSW) (the WIM Act).

On 20 June 2017 EML gave notice to the plaintiff pursuant to s 74 of the WIM Act that the assessment of his WPI did not reach the threshold of 15% required by s 65A(3) of the WC Act and he was therefore not entitled to lump sum compensation.

The Commission appointed Dr Takyar to be the plaintiff’s Approved Medical Specialist. Dr Takyar issued a certificate on 10 August 2017 in which he assessed the plaintiff’s WPI at 15% (the Medical Assessment). In his reasons, Dr Takyar included Table 11.8 of the PIRS [Psychiatric Impairment Rating Scale] Rating Form. Of present relevance he said:

On 4 September 2017 the first defendant applied to the Registrar of the Commission to appeal against the Medical Assessment on the basis that the assessment was made on the basis of incorrect criteria (s 327(3)(c) of the WIM Act) and that the certificate contained a demonstrable error (s 327(3)(d) of the WIM Act).

On 2 February 2018 the Panel assessed the plaintiff’s WPI at 7%. According to the Panel’s reasons, the Registrar of the Commission was satisfied that at least one of the grounds of appeal was made out in accordance with s 327(4) of the WIM Act and the Registrar referred the appeal to the Panel for review of the Medical Assessment. The Panel’s reasons contain the passage from the Medical Assessor’s reasons extracted above and noted that the first defendant alleged error, relevantly, in respect of Table 11.1. “self care and personal hygiene”. The Panel’s reasons said, in part, as follows:

Section 65A(3) of the WC Act provides that no compensation is payable under Division 4 of Part 3 (compensation for non-economic loss) in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.

Part 7 of the WIM Act is entitled “Medical Assessment” and provides for a “medical dispute” to be referred to an approved medical specialist or specialists. The term “medical dispute” is defined by s 319 to include a dispute about a worker’s degree of permanent impairment as a result of an injury. Section 320 provides for the appointment of approved medical specialists. A party to the dispute is entitled to request the Commission or the Registrar to refer a dispute to an approved medical assessor for assessment: s 321. Section 322 provides that an assessment of the degree of permanent impairment is to be made in accordance with the Guidelines in force at the time the assessment is made (as to which, see below). Only one assessment may be made of the degree of permanent impairment of an injured worker: s 322A(1). Section 324 confers certain powers on approved medical assessors on assessment.

Section 325 relevantly provides:

Section 326(1) provides that an assessment certified in a certificate under Part 7 is presumed to be correct as to certain matters, including the degree of permanent impairment of the worker as a result of an injury.

Section 327 relevantly provides:

The Minister for Police referred to the clause which became s 327(3)(c) in the Second Reading Speech to the Bill in the following terms:

In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Wood CJ at CL referred to this passage and said, at [59]:

Basten JA also considered that the “incorrect criteria” ground included the tests set out in the Guidelines, where applicable: Campbelltown City Council v Vegan at [95].

In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Hoeben J at [39] described “demonstrable error” as “an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment.”

Section 328 provides for the procedure on appeal, relevantly as follows:

The State Insurance Regulatory Authority (SIRA) issued the 4th edition of the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines) for assessing permanent impairment arising from an injury within the context of workers’ compensation. It was common ground that this was the appropriate edition for present purposes. Chapter 11 of the Guidelines relevantly provided that the behavioural consequences of psychiatric disorder were to be assessed on six “scales” (also referred to as categories) each of which evaluates an area of functional impairment (cl 11.11).

Clause 11.12 of the Guidelines provides:

“Self care and personal hygiene” is one such area, for which the relevant table is Table 11.1 (see below). Table 11.1 relevantly provides, in respect of this category:

Mr Dodd, who appeared for the plaintiff, submitted that the Panel had not determined that there was a relevant error before proceeding to review the assessment. He submitted, in the alternative, that it was not open to the Panel, in the circumstances of the present case, to find a demonstrable error or incorrect criteria in Dr Takyar’s assessment. He contended, in reliance on what Campbell J said in Ferguson v State of New South Wales [2017] NSWSC 887 that the relevant test to be applied by the Panel was whether the Medical Assessment was “glaringly improbable” and that this threshold had not been reached. He submitted that the present case was indistinguishable from the circumstances addressed by Harrison AsJ in Parker v Select Civil Pty Ltd [2018] NSWSC 140 where her Honour found that a difference in opinion as to whether the plaintiff ought be categorised in Class 2 or Class 3 was insufficient to amount to a demonstrable error or incorrect criteria for the purposes of s 327(3) of the WIM Act.

Further, Mr Dodd submitted, in effect, that Dr Takyar’s assessment ought not lightly be disturbed by the Medical Panel because Dr Takyar assessed the plaintiff, obtained a history and investigated the matter fully whereas the Panel made its assessment on the basis of the evidence before Dr Takyar.

Mr Dodd further contended that the Panel was wrong to conclude that the plaintiff could live independently as there was material before Dr Takyar and the Panel to indicate that the plaintiff stayed with this mother sometimes between Fridays and Sundays. This is not a matter which is within this Court’s jurisdiction to review as it is a purely factual matter relating to evidence which was taken into account by Dr Takyar and the Panel. Accordingly, it is not necessary to address the submission further.

I reject the submission that the Panel’s review is confined to cases where the Medical Assessment, or some aspect of it, is “glaringly improbable”. The submission finds no support in the wording of the WIM Act, which requires only that an error be “demonstrable” or that there be “incorrect criteria”. These expressions, which have been the subject of judicial consideration (see above), are to be understood in accordance with their plain meaning. It appears from Ferguson v State of New South Wales at [24] (Campbell J) that the Medical Panel in its reasons used the expression “glaringly improbable”. It would be a misreading of Campbell J’s reasons to conclude that his Honour intended to suggest that the expression formed any part of the test for error in the context of ss 327 or 328.

As referred to above, the first defendant appealed to the Panel against the Medical Assessment on two of the grounds listed in s 327(3): incorrect criteria and demonstrable error.

Section 327(4) of the WIM Act provides that, before the first defendant’s appeal could proceed, the Registrar was required to be satisfied that (at least) one of the grounds for appeal existed. The Panel stated in its reasons that the Registrar was satisfied that at least one of the grounds of appeal existed ([26] of the Panel’s reasons). Although the plaintiff sought to set aside the Panel’s decision, he did not challenge the Registrar’s exercise of power under s 374(4): cf. Campbelltown City Council v Vegan at [82] (Basten JA). As is apparent from the Panel’s reasons, the “gateway provision” of s 327(4) was satisfied.

In [38] of its reasons, the Panel found that Dr Takyar had “fallen into error” when one compared his “findings” with “the descriptors in the Evaluation Guidelines”. In substance the Panel was satisfied, as is apparent from its reasons, that Dr Takyar had made his assessment on the basis of incorrect criteria within the meaning of s 327(4)(c) of the WIM Act, since he had not applied the Guidelines correctly and that this amounted to a demonstrable error within the meaning of s 327(4)(d) of the WIM Act. The Panel expressly adopted the first defendant’s submissions to this effect in its reasons which was sufficient to incorporate the submissions (which had been outlined earlier in the reasons) into the Panel’s own reasons.

This finding of error indicated that the Panel did not misapprehend its jurisdiction. A decision-maker in the position of the Panel is required to set out “the actual path of reasoning” by which it arrived at its assessment of WPI: Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [48]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39. The reasons are to be understood as recording the steps that were actually taken to arrive at the result: Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [130] per Hayne J. The Panel’s reasons demonstrate that it correctly apprehended and exercised its jurisdiction.

Further support for the proposition that the Panel correctly apprehended its jurisdiction can be found in its reasons for not reviewing the other two grounds of appeal, which concerned the categories with respect to “Travel” and “Concentration, Persistence and Pace”. These reasons are extracted below:

These passages show that the Panel appreciated that it needed to be satisfied that Dr Takyar either based his opinion on incorrect criteria or that there was a demonstrable error before it could proceed to review the assessment.

Having been satisfied of the error relating to the grading with respect to self care and personal hygiene, which fell within two subparagraphs of s 327(4) of the WIM Act, the Panel was both entitled, and obliged, to review the assessment with respect to that item. That the Panel came to a different assessment on the self care and personal hygiene category does not convert its initial finding of error into a mere difference of opinion.

The Panel was limited in its review to the grounds of appeal: namely, incorrect criteria and demonstrable error: s 328(2). The Panel confirmed in its reasons that it had considered all of the material that was before the Medical Assessor and taken it into account: [10] of the Panel’s reasons.

In the present case, the Panel considered that the Medical Assessor had not applied the criteria in the Guidelines correctly. Its finding of error was expressed in its reasons at [38]-[39]. The Panel considered, on the basis of the evidence before the Medical Assessor, that the plaintiff was able to live independently ([35]-[36] of the Panel’s reasons). I reject the plaintiff’s submission that the Panel failed to appreciate that the description of the grades in Table 11.1 included activities which were, as cl 11.12 of the Guidelines provided, were to be regarded as examples. Whether the plaintiff was able to live independently was a conclusion and not an activity. I do not discern any error of law or jurisdictional error in the Panel’s assessment.

In its review, the Panel applied the criteria in the Guidelines to the plaintiff. It is of significance that the Panel did not consider a further examination of the plaintiff was required because “sufficient information was before the Panel to enable the appeal to be finalised” ([9] of the Panel’s reasons). The Panel was entitled to review the Medical Assessor’s grading of the plaintiff in the “self care and hygiene” category. On its review, it came to a different assessment and graded the plaintiff as Grade 2 in this category. This was, in my view, open to the Panel and authorised by the WIM Act.

The plaintiff has not made out his claim for relief since I am not persuaded that there was any error of law on the face of the record or a jurisdictional error in the Panel’s assessment on appeal from the Medical Assessor.

For the reasons set out above, I make the following orders: