Issue 8: November 2017

Guzman v Trade West Pty Ltd [2017] NSWWCCPD 44

(a) misconstrued s 354(7A)(b) of the 1998 Act (Ground No 1);

(b) took irrelevant considerations into account in refusing to refer a ‘medical dispute’ to an AMS (Ground No 2), and

(c) exceeded her powers by determining, or purporting to determine, a ‘medical dispute’ as defined by s 319 of the 1998 Act (Ground No 3).

Held: The Certificate of Determination was revoked and the matter was remitted to the Registrar for referral to an AMS to assess WPI.

Interlocutory decision and leave

1. Leave to appeal an interlocutory decision was granted (Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57; Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31; 10 DDCR 174 and Licul v Corney [1976] HCA 6; (1994) 180 CLR 213 at [11] per Gibbs J applied). ([22]–[23], [26]–[29])

Ground No 1 – section 354(7A)(b) of the 1998 Act

2. The correctness of the decision of Abou-Haidar was not challenged by the parties. The appellant relied on Spears v Department of Ageing, Disability & Homecare of NSW [2010] NSWWCCPD 35; 12 DDCR 1 (Spears) and submitted that a matter should not be dismissed under s 354(7A)(b) unless the test set out in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 (General Steel) is satisfied and the matter is clearly ‘not reasonably arguable’. The appellant argued that the Senior Arbitrator erred by not referring to or applying General Steel. Deputy President Snell found that neither party referred the Senior Arbitrator to General Steel and that she had not referred to it in her reasons. ([44]–[46])

3. Deputy President Snell reiterated that the test for dismissal pursuant to s 354(7A)(b), stated in Spears, is that the matter be clearly not reasonably arguable. He observed that the various alternative formulations quoted in General Steel also assist. ([47])

The dispute regarding permanent impairment

4. Deputy President Snell held that the worker brought a further claim for lump sum compensation. The respondent had not raised a ‘liability’ issue. Having regard to the true character of the dispute, this was a ‘medical dispute’ within the meaning of s 319 of the 1998 Act. It was necessary that it be determined in accordance with Pt 7 of Ch 7 of the 1998 Act. It is clear that assessment of permanent impairment as provided by Pt 7 of Ch 7, in compliance with s 65 of the 1987 Act, involves both the degree of permanent impairment and whether there is a deductible proportion pursuant to s 323(1) of the 1998 Act. (Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 at [19]–[21], and Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [56] referred to). ([50]–[55])

5. The Senior Arbitrator did not have jurisdiction to decide the ‘medical dispute’ (as she correctly observed) nor to make findings which either bound, or were persuasive with, an AMS or an Appeal Panel. As there were no further matters of ‘liability’ requiring determination by the Commission, it was appropriate that the ‘medical dispute’ be referred to an AMS, in compliance with s 65(3) of the 1987 Act and s 293(2) of the 1998 Act. The Senior Arbitrator’s reasons for the dismissal involved consideration of the merits of Dr Woo’s assessment of permanent impairment, involving the lack of reasons for the deductible proportion which he applied. (Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50 at [51] and Abou-Haidar at [60]–[63] referred to). ([56])

6. The Deputy President held that it was not open to the Senior Arbitrator in the circumstances, to dismiss the proceedings pursuant to s 354(7A)(b), effectively on the basis of a consideration of the persuasiveness of the medical evidence relied on by the worker, to make the claim for lump sum compensation which gave rise to a ‘medical dispute’ (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [47] and State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [26] applied). ([59])

7. In a matter where no liability issues are raised, and the remaining issue is one going to assessment of permanent impairment (which requires referral to an AMS) it is difficult to see a basis on which a view could be formed by an arbitrator, consistent with General Steel, that the matter is clearly not reasonably arguable. The assessment by the AMS will be based on not only the evidence of the parties, but also his or her own medical experience and expertise, and cannot be known before it is carried out. The test applied by the Senior Arbitrator was an incorrect one, in that she dismissed the proceedings on the basis of the perceived lack of viability of the permanent impairment claim on quantum, when that was not a matter for her to decide. ([61])

8. Ground No 1 was upheld. It was necessary to order that the matter be remitted to the Registrar for referral to an AMS to assess WPI. ([71])

Ground No 2 – taking irrelevant considerations into account

9. The reasons for Ground No 1 effectively dealt with Ground No 2. There were no outstanding ‘liability’ issues requiring determination by the Commission. There was a ‘medical dispute’ which required referral to an AMS. The dismissal of the proceedings, after consideration of the merits of the permanent impairment claim on quantum, involved taking irrelevant considerations into account. Ground No 2 was upheld. ([75])

Ground No 3 – exceeding power by determining a medical assessment

10. It was unnecessary to deal with Ground No 3. ([76])

(a) failed to give proper reasons for preferring the opinion of Dr Hampshire (Ground No 1);

(b) failed to consider the evidence when determining the worker was a witness of credit (Ground No 2);

(c) failed to determine a diagnosis when it was “critically relevant” in determining the question of causation (Ground No 3);

(d) determined that s 11A(1) did not apply (Ground No 4);

(e) applied the wrong test in determining s 11A(1) (Ground No 5);

(f) failed to properly determine each step, in applying s 11A(1) (Ground No 6), and

(g) gave no reasons for his finding that “the injury was ‘principally’ caused by the suicide itself”, without a proper evaluation of the evidence. The finding was against the weight of the evidence (Ground No 7).

Held: The Certificate of Determination dated 8 May 2017 was revoked and the matter was remitted for re-determination by another Arbitrator.

Ground No 1 – preferring Dr Hampshire

The weight of Dr Hampshire’s reports

1. The appellant’s main attack on the Arbitrator’s reasons, for accepting the opinion of Dr Hampshire, focused on the adequacy of the history on which Dr Hampshire’s opinion stood, and whether this affected the weight of the doctor’s reports. ([40])

2. Acting President Snell held that the attack on the adequacy of the history on which Dr Hampshire’s reports were based, and consequently on the weight of those reports, was without merit. When Dr Hampshire’s reports were read together, he had a full history of most of the matters raised in other material (Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 705; 8 DDCR 399 Beazley JA (Giles and Tobias JJA agreeing) at [92] and Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 at [9] applied). ([40]–[43], [48])

The past history

3. In the circumstances, it was unnecessary for the Arbitrator to give extensive reasons dealing with his acceptance of Dr Hampshire’s report, on the basis of any suggested deficit in the recorded past history. An arbitrator’s obligation to give reasons depends on the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at [728], applied in Luxotica Retail Australia Pty Ltd v Susak [2014] NSWWCCPD 36 at [37]). ([49])

The reasons and the medical issue

4. The appellant submitted that the Arbitrator’s reasons for preferring Dr Hampshire’s opinion, “in the presence of such inconsistency”, was not explained. The Acting President held that there was no significant inconsistency between the history on which the reports of Dr Hampshire and Dr Roberts were based. There was a considerable level of consistency between the opinions of those doctors. Both thought the prior historical matters raised in the appellant’s case were not contributory to the psychological injury. Both thought that the worker suffered psychological injury as a result of the patient’s suicide (NSW Police Force v Newby [2009] NSWWCCPD 75 at [149]–[151]; Hume v Walton [2005] NSWCA 148 (Hume) at [69] per McColl JA; Charles Sturt University v Manning [2016] NSWWCCPD 10 at [53]; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at [444]; University of New South Wales v Brooks [2014] NSWWCCPD 68 at [42], and Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [48] referred to). ([65])

5. Acting President Snell observed that the Arbitrator moved from a rejection of the proposition that the worker was “trying to hide past stressful events” (a neighbour murdering his wife, and the stressful effects of a drought) to an acceptance of her credibility, and of “the opinion of Dr Hampshire”, apparently in its entirety. Dr Roberts remarked on the worker’s credibility, based on perceived deficiencies in the worker’s history, dealing with events prior to 28 February 2014 (essentially in 1993 and 2001). It was common ground between these two doctors that those events were not causative of the injury at issue. It did not follow that, if the worker’s credibility was accepted (contrary to Dr Roberts’ remark about her veracity), this necessarily involved acceptance of Dr Hampshire’s opinion overall. ([78])

6. Dr Hampshire, while conceding that those events after the patient’s suicide had a significant causative role, did not concede that those events were the predominant cause of the psychological injury. Dr Roberts, on the other hand, considered that those “processes” were the predominant causative factors. The Arbitrator was required to resolve the issue of the competing medical cases, in dealing with the s 11A(1) defence. This required that he “enter into the issues canvassed” and explain why he preferred one case over the other (see Hume). The Arbitrator’s remark that he was “a little perplexed” by Dr Roberts’ change of opinion did not constitute entering into the issues canvassed. This involved error, of the sort identified by Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 at [130]. ([82], [86])

7. Acting President Snell upheld Ground No 1. He held that the appropriate course was that the matter be remitted for re-determination by another Arbitrator (Hamad v Q Catering Limited [2017] NSWWCCPD 6 at [88] applied). In those circumstances, it was unnecessary to deal with the balance of the grounds. ([87]–[89])

(a) “passing judgment” on the fresh evidence in [13]–[25] of the decision having found the appeal to be incompetent because of a lack of jurisdiction;

(b) relation to exemption from the operation of the 2012 amendments;

(c) holding, in effect, that s 352 was a complete code with respect to Presidential appeals;

(d) failing to accept the worker’s argument that cl 125 of the 2016 Regulation authorised an appeal from the Registrar or delegate’s decisions;

(e) the manner in which the headings in the 2016 Regulation were utilised in the construction and interpretation of cl 125;

(f) his conclusion that s 327(3) of the 1998 Act reposed an administrative function on the Registrar and/or his delegate and that if the decisions were to be reviewed the appropriate remedy was to be found in s 69 of the Supreme Court Act 1970;

(g) the interaction between the statute and the 2016 Regulation as set forth in [45]–[49] of the appeal decision;

(h) failing to construe the legislation liberally and as generously as the language allowed, such that the Acting Deputy President’s construction of the legislation and the 2016 Regulation was inconsistent with the objects of the 1998 Act, as set out in s 3, and

(i) failing to permit an oral hearing.

Held: The application, pursuant to s 350(3) of the 1998 Act, to reconsider the decision of 11 September 2017 was refused.

Decision

The worker’s submissions conflicted with the principles applicable to an application for reconsideration. There is relevantly a public interest in finality and proceedings should not continue indefinitely. The worker did not rely on additional evidence; rather, she sought to advance argument in contradiction to the Acting Deputy President’s conclusions dispositive of the appeal. The Acting Deputy President noted the worker’s right of appeal to the Court of Appeal pursuant to s 353 of the 1998 Act. He was not satisfied that there was an appropriate basis to exercise the reconsideration power pursuant to s 350(3) of the 1998 Act. Acting Deputy President Parker declined to reconsider his decision of 11 September 2017 (Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 at [58] applied). ([10]–[16])