Issue 11: November 2016

Cook v Council of the City of Sydney [2016] NSWWCCPD 51

Request by parties for re-examination of worker by Medical Appeal Panel refused; whether Arbitrator erred in issuing Certificate of Determination in accordance with Medical Appeal Panel findings; alleged denial of procedural fairness by not deferring the issuing of a Medical Assessment Certificate to enable worker to make further submissions; adequacy of reasons

Keating P

25 October 2016

Facts

This appeal concerned whether the Deputy Registrar acting as an Arbitrator erred in law by issuing a Certificate of Determination (COD) in accordance with a Medical Assessment Certificate (MAC) of a Medical Appeal Panel (the Panel), in circumstances where the Panel did not conduct a medical examination notwithstanding a request that it do so.

The worker made a claim for permanent impairment compensation under s 66 of the 1987 Act, in respect of an accepted psychological injury. The parties were in dispute as to the quantum of any whole person impairment arising from that injury. The worker claimed 20 per cent whole person impairment in respect of the injury. On remitter from the Supreme Court, which determined an application for judicial review of a previous Medical Appeal Panel decision, the Panel recorded in a new MAC that the worker had seven per cent whole person impairment in respect of the injury. Accordingly, the Arbitrator issued a COD in accordance with that new MAC. That COD is the subject of this appeal.

The issues on appeal were whether the Arbitrator erred:

(a)    in issuing the COD under s 294 of the 1998 Act based upon a MAC issued by a Medical Appeal Panel in circumstances where the Panel did not conduct a medical examination;

(b) in denying the worker procedural fairness, by not providing him with an opportunity to provide submissions concerning the request for re-examination before the COD was issued, and

(c) in failing to provide adequate reasons for the determination.

Held: The Arbitrator’s determination was confirmed.  

Alleged error of law

1. The Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an AMS (s 65(3)). An assessment certified in a MAC is conclusively presumed to be correct as to those matters in any proceedings before the Commission with which the certificate is concerned (s 326 of the 1998 Act) ([49]).

2. There is a right of appeal on limited grounds to a Medical Appeal Panel against a medical assessment (s 327 of the 1998 Act). In addition, such a matter may be referred to the Registrar or the Commission for further assessment or reconsideration by an AMS (s 329 of the 1998 Act). Section 328 of the 1998 Act and the Workcover Medical Assessment Guidelines set out the procedure on appeal ([50]-[52]).

3. Relevantly cl 45 of the Guidelines provides:

“45. An appeal panel consists of two approved medical specialists and one arbitrator. The appeal panel may adopt any of the following procedures in accordance with the needs of the individual case:

• preliminary review (in all matters),
• ‘on the papers’ review,
• further medical examination by an approved medical specialist on the appeal panel,
• assessment hearing.” (emphasis added)

4. The Panel noted that the worker requested that the Panel conduct a re-examination. The Panel specifically noted that the worker’s solicitor’s request for re-examination was “in order to ensure procedural fairness and to lessen the risk of any errors, and given the length of time since the medical examination by the Approved Medical Specialist.” The worker’s request for the re-examination and the submissions in support of that request were before the Panel when it determined whether or not to exercise its discretion to conduct a re-examination. The Panel gave reasons for declining to exercise its discretion to arrange for an AMS to re-examine the worker ([58]-[60]).

5. The appeal was misconceived; it sought to circumvent the provisions of s 378 or judicial review by the Supreme Court, by having the Commission consider the merits of the exercise of the Panel’s discretion with respect to the re-examination issue. The Commission has no jurisdiction to entertain such a submission in a s 352 appeal ([61]).

6. The relief sought by the worker in this matter urged that the COD be revoked and that the matter be referred to a new Panel with a direction that the Panel arrange a re-examination of the worker to determine the worker’s correct assessment of whole person impairment. The Commission has no jurisdiction to make such an order (Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 and Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139 applied) ([62]-[64]).

7. The requirement of the Guidelines that a medical assessment be conducted was satisfied when the worker was assessed by the Approved Medical Specialist. The question of re-examination was a matter solely within the discretion of the Panel (Pateman v Peninsula Village Ltd t/as Peninsula Village Retirement Centre [2007] NSWSC 586) ([66]-[67]).

8. The President rejected the submission that the Panel wrongly exercised its discretion to proceed in the absence of a re-examination because of a lack of contemporaneous medical evidence. The President also rejected the submission that the Panel had no power to make its own findings without conducting a re-examination. It followed that the submission that the Panel’s decision was invalid was also rejected ([67]-[69]).

9. No error of law was established [70].

10. The President observed that the Panel’s power to conduct an examination is only enlivened when it has determined that there is an error in the MAC: New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792, not merely to ascertain a worker’s current medical status ([71]).

The procedural fairness issue

11. The worker submitted that the Commission failed to give the parties a reasonable opportunity to present his case before it issued the COD and therefore denied him procedural fairness ([72]-[74]).

12. The President found that the worker had every opportunity to put submissions before the Panel concerning his request for re-examination before the Panel issued its MAC and did so. It was inappropriate to request the Commission to consider whether any additional submissions were required ([80]).

13. The only role the Commission had to play in affording the worker procedural fairness was to ensure that the submissions made on his behalf were put before the Panel for its consideration. The Commission promptly did so and those submissions were considered by the Panel ([81]).

14. The Panel noted the issues before it. There were no elements of those matters that the Panel considered required re-examination of the worker in order to determine the appeal. The Panel also noted that neither party had requested an oral hearing for the presentation of submissions. In those circumstances, the Panel dealt with the request for re-examination in its reasons ([82]-[83]).

15. Immediately following the issuing of the Panel decision, the parties were notified that in the absence of any dispute in relation to the worker’s entitlements under s 67 a COD would be issued. That was consistent with the Commission’s statutory duty under s 294 ([84]).

16. The President found that the Commission could not deny procedural fairness to the worker by not acting itself on a request which it had no jurisdiction to determine. It followed that this ground of appeal failed ([86]-[87]).

Adequacy of reasons

17. In order for the Arbitrator’s decision to be set aside on the ground of inadequate reasons the worker had to demonstrate not only that the reasons were inadequate, but that their inadequacy disclosed that the Arbitrator failed to exercise his or her statutory duty to fairly and lawfully determine the application: YG & GG v Minister for Community Services [2002] NSWCA 247; Young v Labourpower Recruitment Services Pty Ltd [2016] NSWWCCPD 37; and NSW Police Force v Newby [2009] NSWWCCPD 75 ([94]).

18. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6) ([95]).

19. The statutory duty to provide a brief statement of reasons must be read in the context of the overall statutory scheme for resolving permanent impairment disputes. While a MAC is conclusively presumed to be correct in respect of the matters listed in s 326(1)(a)–(e), it does not equate to a determination of the dispute by the Commission: Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321. After a MAC is issued by a Medical Appeal Panel, the dispute must be returned to an Arbitrator for final determination ([96]).

20. Viewed in this context, in the absence of any further dispute requiring determination by an Arbitrator all that remains is for the Arbitrator to issue a COD to reflect the findings of the Panel. In this context it was perfectly adequate for the Arbitrator to state, as she did, that the COD was issued in accordance with the MAC issued under Pt 7 Ch 7 of the 1998 Act and to note that the worker did not reach the threshold for lump sum compensation as required by s 65A(3) of the 1987 Act. The President found that the reasons given by the Arbitrator satisfied the statutory duty to provide brief reasons. It followed that this ground of appeal failed ([98]-[99]).

Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50

Use of clinical notes in fact finding – application of Mason v Demasi [2009] NSWCA 227 and related authorities; procedural fairness and the rule in Browne v Dunn (1893) 6 R 67 in the Commission; rejection of evidence which is uncontroverted; weight of evidence – application of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 and related authorities; s 65A of the 1987 Act and an alleged two stage test in determining primary psychological injury

Snell DP

18 October 2016

Facts

The appellant injured his left foot and ankle in the course of his employment in 2011. In 2015 the appellant sought lump sum compensation for psychological injury pursuant to s 66 of the 1987 Act, allegedly resulting from the same incident.

The Arbitrator was not satisfied that the appellant had suffered a primary psychological injury and found for the respondent employer.

On appeal, the issues before Snell DP were whether the Arbitrator:

(a)  erred in fact in drawing an adverse inference that was not reasonably available (Ground 1(a));

(b)   erred in fact in rejecting the appellant’s evidence in his statements, that immediately after the accident he “became depressed and would have nightmares and flashbacks about the incident” (Ground 1(b));

(c)   erred in determining the issue of whether the appellant suffered from PTSD, that properly being a ‘medical dispute’ within the meaning of s 121(1) of the 1998 Act which “should be referred to an AMS for determination” (Ground 2).

(d)   denied the appellant procedural fairness, in rejecting his evidence when no challenge was made to it, no oral evidence was called, and the appellant was not given an opportunity to address the Arbitrator’s concerns regarding a “lack of information in the medical notes”. The appellant referred to the rule in Browne v Dunn (1893) 6 R 67 (Ground 3).

Held: the Arbitrator’s determination was confirmed.

Ground 1(a)

1. The appellant stated that he experienced nightmares, flashbacks, startle responses, hyper vigilance and a negative reaction to hearing the word “forklift”. The Arbitrator found that there was a lack of reference to those symptoms in the clinical notes from the general practitioners the appellant consulted, which were “extensive and quite detailed”. The Arbitrator inferred that the appellant failed to raise such matters at consultations with the general practitioners because he was not suffering from the relevant symptoms at the time of the consultations ([23]).

2. Deputy President Snell observed that the appellant’s statement, that he experienced the alleged symptoms immediately after the accident, was inconsistent with the history recorded by the appellant’s qualified psychiatrist, Dr Robertson ([32]). The effect of this factual finding was that the Arbitrator rejected the appellant’s evidence. The Arbitrator’s rejection of that evidence was an important credit finding against the appellant. The finding deprived Dr Robertson’s opinion of weight, as it was based on a history which was inconsistent with the factual evidence accepted by the Arbitrator ([34]).

3. The authorities require that clinical notes be used with caution (Mason v Demasi [2009] NSWCA 227; Winter v New South Wales Police Force [2010] NSWWCCPD 121), including having regard to the circumstances in which the notes were brought into existence ([36]-[37]). The authorities do not require specific evidence as to the circumstances of the relevant consultations before evidence in clinical notes can be accepted ([40]).

4. Deputy President Snell noted that the Arbitrator referred to the need for caution in the use of the clinical notes ([39]), provided specific reasons why he relied on the notes ([41]) and specifically considered the lack of reference to the symptoms in the appellant’s statement, before he concluded that the appellant did not experience those psychological symptoms at the time of the earlier consultations ([42]).

5. Having examined the relevant clinical notes, Snell DP accepted that the clinical notes were detailed and extensive ([43]-[50]). Deputy President Snell held that the inference drawn by the Arbitrator reflected the content of the clinical notes and revealed no error. It was noted that the history and opinion of the appellant’s treating rehabilitation physician was also supportive of the approach taken by the Arbitrator ([51]-[56]).

6. Ground 1(a) failed ([57]).

Ground 3

7. The appellant submitted that the Arbitrator erred in rejecting Dr Robertson’s opinion and making the adverse credit finding, in the absence of inconsistent evidence, in circumstances where the appellant was not offered the opportunity to rebut such a finding or be cross-examined ([59]-[61]).

8. Deputy President Snell observed that there is no right to cross-examine in the commission (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 at [37]). Subject to the relevant issue having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on a witness’s credit, it was open to an Arbitrator to form a view on credit even if  the relevant witness had not given oral evidence or been cross-examined (NSW Police Force v Winter [2011] NSWCA 330 at [81]; cited by Roche DP in JB Metropolitan Distributors Pty Lt v Kitanoski [2016] NSWWCCPD 17 at [121]).

9. The material relevant to the Arbitrator’s credit finding was ventilated between the parties in the served evidence ([67] and [72]). The issues concerning the clinical histories were raised and addressed at the arbitration hearing ([68], [71] and [72]). Deputy President Snell concluded there was no procedural unfairness in the Arbitrator’s approach ([72]).

10. Ground 3 failed ([73]).

Ground 1(b)

11. Deputy President Snell said that a decision maker was not obliged to accept evidence on the basis that there was no evidence to the contrary (SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129) ([76]). There were clinical notes and a medical report which were inconsistent with the appellant’s statement and the history recorded in Dr Robertson’s report. The Arbitrator did not err in rejecting the appellant’s statement and the medical report ([77]). The rejection was based on the Arbitrator’s acceptance of the relevant clinical notes and the report of the appellant’s treating physician, not on the competing medical opinion in the respondent’s case, which was criticised by the appellant [78]).

12. Deputy President Snell said that the Arbitrator’s finding, that the history taken by Dr Robertson was incomplete and incorrect, was relevant to the weight to be given to his medical opinion. The appellant’s submission that the finding was not open in the absence of evidence going to how the history was obtained was misconceived ([79]).

13. In light of Makita (Australia) Pty Ltd v Sprowles [2011] NSWCA 305; 52 NSWLR 705 and Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399, Snell DP said that the issue was not how the history was obtained, but rather whether there was sufficient correlation between that history and the history found by the Arbitrator to be the true one. The Arbitrator gave no weight to Dr Robertson’s opinion, due to the lack of correlation between the appellant’s statement and the true history as found by the Arbitrator ([82]). That the appellant’s statement was consistent with the history taken by Dr Robertson did not assist the appellant ([83]).

14. Ground 1(b) failed ([84]).

Ground 2

15. The appellant submitted that the issue of whether he suffered a primary psychological injury in the nature of PTSD, resulting from his employment injury, required a two-stage test: firstly, the Commission was to determine whether the appellant suffered a primary or secondary psychological injury, and secondly, whether the appellant suffered from PTSD. The appellant submitted the second of these issues required referral to an AMS ([85]-[86]).

16. It was further submitted that the Arbitrator essentially conducted a medical examination. The appellant submitted that this was: contrary to s 121 of the 1998 Act, was an inappropriate basis for properly evaluating the history and symptomatology, and did not properly consider the whole evidence as required by Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82 (Arsenovic) ([88]-[89]).

17. Deputy President Snell observed that s 121 of the 1998 Act applies to “existing claims”, not to the current case. There was no support in authority or legislation for the two-stage test that the appellant proposed ([94]).

18. The issue of a MAC did not equate to a determination by the Commission (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; (2004) 5 DDCR 321) ([95]).

19. The decision in Arsenovic did not support a two-stage test, as submitted by the appellant. The principle stated in Arsenovic was that “whether a worker has sustained a primary psychological injury depends on an assessment of all the evidence, lay and expert, in the particular case” ([96]).

20. Applying the principles in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, Snell DP found that the Arbitrator did not fall into error. He was satisfied that the Arbitrator had considered the whole of the relevant evidence, lay and expert, consistent with Arsenovic([98]).

21. Ground 2 failed ([99]).

Kirunda v NSW Police (No 2) [2016] NSWWCCPD 49

Reconsideration – S 350(3) of the 1998 Act

Snell AP

11 October 2016

Facts

Following the appellant’s initial appeal application, Deputy President Snell revoked the Arbitrator‘s decision and remitted the matter to a different Arbitrator (Kirunda v NSW Police Service[2016] NSWWCCPD 40 (Kirunda (No 1)).

The appellant then applied for reconsideration of the decision in Kirunda (No 1), requesting that the order for remitter be reconsidered.

The issue in the current case was whether there was sufficient basis for exercise of the power of reconsideration pursuant to s 350(3) of the 1998 Act.

Held: Leave for reconsideration was refused.    

Consideration

1. Acting President Snell observed that the appellant, in the reconsideration application, did not rely on new evidence, but sought to make further submissions. A party’s wish to make further submissions was not an accepted basis for reconsideration under s 350(3) ([13]).

2. The assertion of apprehended bias against various Arbitrators was not an appropriate basis for reconsideration ([14]).

3. The appellant was unrepresented in the previous appeal proceedings and possibly remained so thereafter. The appellant’s lack of legal representation did not form a basis for reconsideration ([15]).

4. Applying the principles in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482, Snell AP found no appropriate basis for reconsideration ([16]).