Appeal Case Summaries

Secretary, Department of Education v Carter [2022] NSWPICPD 1

WORKERS COMPENSATION – Alleged factual error; application of State of New South Wales v Seedsman [2000] NSWCA 119; dispute notices, application of Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; duty to give adequate reasons; current work capacity; application of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55

Snell DP

10 January 2022

Facts

The respondent worker was a relief teacher, working for the appellant two days per week. On 24 November 2019, the respondent was on long service leave, holidaying with her parents in Victoria, when she received a text message from “a colleague”. It informed her that there was a rumour “going around the School” that she “had been suspended for slapping a student across the face”. The respondent stated this was “completely untrue” and she requested that the principal “immediately investigate the matter”. The respondent was later informed that the alleged incident occurred on 14 August 2019 and was reported during the previous term, although she was not informed at that time. The respondent stated she had simply given ‘lines’ to a student who was not working as directed.

The respondent stated she had been working at the school “oblivious to the rumours” and she felt humiliated. She said the area she worked in was a “small community” and she felt that people were taking about her. She ultimately did not return to work. The appellant’s insurer accepted liability for the respondent’s claim in respect of psychological injury. The insurer put in issue whether the respondent had suffered ‘injury’ “as defined by DSM-V or ICD-10” arising out of or in the course of employment, whether s 9A of the 1987 Act was satisfied, and the entitlement to weekly compensation and medical expenses.

The Member issued an ex tempore decision at the arbitration hearing. The Member made a finding of psychological injury and noted that both Dr Canaris (psychiatrist qualified by the respondent) and Dr Dias (general practitioner) arrived at a DSM V diagnosis. He described it as ‘common sense’ that the respondent would react as she did when confronted with the very serious allegation of slapping a child’s face. The Member then turned to capacity and found that the respondent had “some capacity for work” from “around early to mid 2020” of at least four hours per week. He made a weekly award for the respondent pursuant to s 37 of the 1987 Act at the rate of $555.77 from 22 November 2020 to date and continuing. He made a general order for the payment of the respondent’s medical and related expenses pursuant to s 60 of the 1987 Act. The employer appealed.

The issues on appeal were raised in the following grounds:

(a) the Member’s decision, in preferring the diagnosis of Dr Canaris to that of Dr Miller, was affected by an error of fact and of law by stating that Dr Miller had applied an incorrect test (Ground 1);

(b) the Member, by preferring the diagnosis of Dr Canaris to that of Dr Miller by discounting Dr Miller's opinion because of the use of the term “Industrial dispute”, resulted in his decision being affected by an error of fact (Ground 2);

(c) the Member, by dealing with the evidence relating to the existence or otherwise of a pre-existing psychological/psychiatric condition as he did, erred in fact (Ground 3), and

(d) the Member’s finding that the respondent had a capacity to earn in suitable employment of $185.25 resulted in his decision being affected by an error of fact and law (Ground 4).

Held: The Certificate of Determination dated 8 April 2021 was amended to substitute the figure “$731.15” for the figure “$555.77”. The Certificate of Determination dated 8 April 2021 was otherwise confirmed.

Ground 1

1. The Member made reference to Transfield Services (Aust) Pty Ltd v Wicks [2011] NSWWCCPD 63 (Wicks), in which Roche DP referred to the discussion by Spigelman CJ, in State of New South Wales v Seedsman [2000] NSWCA 11, (Seedsman), on the use of DSM-IV (now DSM-V) in courts. Consistent with Seedsman, Roche DP in Wicks accepted that DSM-IV is only a guide and is subject to clinical judgment. Adherence to the diagnostic criteria is not mandatory but advisory. Neither party submitted this was an incorrect statement of principle. ([35]–[37])
2. Dr Miller, the psychiatrist qualified by the insurer, repeatedly used the phrase “compensable, work-related psychiatric injury as defined by DSM-V or ICD 10” in her report, where the term appeared ten times. When asked to comment on matters relating to ‘injury’ the doctor employed the phrase as a descriptor of ‘injury’. Inherent in the phrase is the concept that compensable injury is to be defined by reference to DSM-V or ICD 10. On a fair reading of her report, Dr Miller dealt with the concept of ‘injury’ in a fashion inconsistent with what was said by the Court of Appeal in Seedsman (and followed in Wicks). The way in which the appellant couched its denial of ‘injury’ in its dispute notice made it clear that whether there was an ‘injury’ within the meaning of DSM-V or ICD 10 was an inherent part of the defence on ‘injury’ that was advanced, based on the report of Dr Miller. Snell DP accepted that this involved approaching the issue in a fashion inconsistent with Seedsman and Wicks. The Deputy President accepted that this involved the application on Dr Miller’s part of an inappropriate test. It was properly open to the Member to deal with Dr Miller’s opinion on the basis that its probative force was significantly reduced as a consequence. ([38])
3. Dr Canaris’ report described the respondent’s presentation as “consistent with a diagnosis of an adjustment disorder with anxiety”. His report did not actually refer to DSM-V. Dr Canaris’ diagnosis falls within the criteria in DSM-V. Dr Canaris was asked to assess permanent impairment. The ‘NSW workers compensation guidelines for the evaluation of permanent impairment’ (4th ed. March 2021) (the guidelines) provide, in relation to ‘mental and behavioural disorders’, for assessment consistent with Ch 11 of the guidelines. Chapter 11 provides, among other things, for assessment on scales which evaluate functional impairment (PIRS). Dr Canaris employed that method of assessing permanent impairment, which is not part of DSM-V, in compliance with the guidelines. Snell DP held the way in which Dr Canaris dealt with the occurrence of psychological injury was not inconsistent with generally accepted principles regarding the occurrence and assessment of psychological injury. ([40])
4. The primary reason given by the Member, for not accepting the opinion of Dr Miller, was consistent with what was said in Seedsman and was open to the Member. The Member referred to the above difficulty with Dr Miller’s report as one of the reasons, “amongst others”, for discounting Dr Miller’s opinion. The Member gave a further reason. The symptoms recorded by Dr Miller did not include anxiety. The Member referred to this disparity between the symptoms as recorded by Dr Dias and Dr Canaris, compared with those described by Dr Miller. The Member described this as inconsistent with the respondent’s statement and with the matters recorded by Dr Canaris and Dr Dias. This also supported the Member’s preference for the views of Dr Canaris and Dr Dias over those of Dr Miller. Ground 1 failed. ([42]–[44])

Ground 2

5. The Member’s discussion of the term ‘industrial dispute’ was very brief. The term was raised by the appellant, which employed the term in its denial of ‘injury’. The Member raised the term on the basis that Dr Miller had used it. The Member said the nature of the ‘industrial dispute’ “has not been explained by Dr Miller or anybody else”. He observed it “could relate to any one of a number of factors” including the rumour and how the rumour was dealt with by her superiors. The appellant’s submissions had not sought to identify any part of the reasoning that was dependent on the term. It had not sought to identify how use of the term was erroneous or had any impact on the result. Ground 2 failed. ([47]–[48])

Ground 3

6. The appellant’s dispute notice dated 28 October 2020 raised whether the respondent suffered an injury arising out of employment, whether she suffered a psychological injury and whether s 9A of the 1987 Act was satisfied. It disputed the entitlement to weekly payments and medical expenses, consistent with its denial of ‘injury’. The description of the appellant’s reasons for its decision referred to Dr Miller’s report. It asserted the respondent had not sustained a psychological injury, but rather “emotional upset in the context of an industrial dispute”. It stated this did not meet the “threshold for a work related compensable psychiatric injury as defined by DSM-V or ICD-10”. That is, emotional upset does not constitute a psychological injury. The reasons in the notice did not raise the presence of a pre-existing psychiatric or psychological injury in any way. The reply described the issues as being “as per dispute notice(s) attached to the application”. It referred to “any other issues” being that the respondent had “not suffered a psychological injury”, was “not incapacitated” and it indicated it would issue a Notice for Production of financial records. It added nothing going to pre-existing psychological problems. ([55])
7. The appellant had knowledge of the respondent’s reduced hours; it had been provided with a medical certificate which stated that this reduction related to the deaths of her first husband and her daughter. The appellant was on notice of “pre-existing mental health issues” that were unrelated to work. The appellant did not raise the presence of a pre-existing psychological condition as an issue in its defence of the matter in the dispute notice or the issues nominated in the Reply. The wording of Ground 3 was vague in the extreme. It complained of the Member dealing with the evidence “as he did”, without satisfactorily identifying what he did that involved error. It complained there was a resultant “error of fact” without satisfactorily identifying what this was. Ground 3 was without merit and failed. ([63])

Ground 4

8. The respondent’s first submission was that Ground 4 should be dismissed having regard to its form. The ground was expressed inappropriately. Deputy President Snell was of the view that there was merit in the challenge to the weekly award on the basis of the adequacy of the reasons. ([75])
9. The making of a weekly award in the current matter involved application of a statutory scheme, which included the definitions in the legislation and authority that dealt with the legislation. The amount of detail that is required in dealing with this task will vary, depending on the facts and circumstances of the individual case. Whether the respondent did or did not have current work capacity depended on an assessment of whether she was able to return to work in either her pre-injury employment or in suitable employment. This involved consideration of whether there was a real job, in employment, for which she was suited. ([77])
10. Whether the respondent had a capacity for ‘suitable employment’, and if so to what extent, was a matter in issue between the parties. The respondent’s working background over approximately two decades was working as a teacher, accompanied by postgraduate studies in education. The Member did not find that she was fit to resume work in the teaching profession. He referred to the respondent’s skills by reference to the respondent’s critique of Dr Miller’s report relating to her own case. Consistent with Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, it was necessary that the analysis include a consideration of whether the respondent was fit for a real job in employment to which she was suited. The Member’s reasons did not engage with this issue, nor with the medical evidence that was relevant to it. The Member’s assessment of the weekly entitlement was, in a general sense, consistent with an assessment that the respondent, who previously worked two days per week, had one quarter of this capacity removed by the found injury. The reasons did not expose the reasoning that led to this conclusion. The reasons were not adequate. Ground 4 succeeded. ([80]–[81])

(Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied)

Re-determination

11. Deputy President Snell re-determined the matter, and in the Certificate of Determination substituted the figure “$731.15” for the figure “$555.77”. ([89]–[98])

ACS v Secretary, Department of Communities and Justice [2022] NSWPICPD 2

WORKERS COMPENSATION – proceedings in respect of Part 2A of the Civil Liability Act 2002 – special provisions for offenders in custody – monetary threshold to appeal a decision of a Member required by s 352(3) of the 1998 Act – s 4 of the 1998 Act – definition of “compensation”

Wood DP

10 January 2022

Facts

This appeal concerned an application filed in the former Workers Compensation Commission by the appellant, ACS, for an assessment of the degree of permanent impairment in respect of a psychological injury sustained by him on 28 July 2016.

The appellant had commenced proceedings in the District Court of NSW, claiming damages pursuant to s 26D of the Civil Liability Act 2002. Part 2A of the Civil Liability Act makes special provisions in respect of offenders in custody, which applied to the appellant, and provide for an application by an offender to the District Court for an award of “personal injury damages.” Section 26C of the Civil Liability Act precludes an award of damages in respect of the assessment of permanent impairment unless the degree of permanent impairment is at least 15%. In this case, the respondents – the Secretary, Department of Communities and Justice, the State of New South Wales and the GEO Group Pty Ltd – disputed that the appellant reached the necessary 15% permanent impairment, and so the assessment of the appellant’s impairment was required to be assessed by an approved medical specialist (AMS) appointed by the then Workers Compensation Commission in accordance with Part 7 of Chapter 7 of the 1998 Act.

An appointment with an approved medical assessor was arranged, however, an issue arose as to whether closed circuit television (CCTV) footage attached to the appellant’s application should be included in the referral to the AMS.

On 1 March 2021, the Workers Compensation Commission was abolished and the matter became one in the Workers Compensation Division of the Personal Injury Commission. The Senior Member issued a Certificate of Determination – Consent Orders dated 16 March 2021, referring the matter to an AMS appointed by the Commission, but excluding the CCTV footage, subject to any further submissions from the parties.

The parties lodged further submissions with respect to the CCTV footage. The Senior Member issued a further Certificate of Determination in which he determined that the CCTV footage would be excluded from the referral. The appellant appealed that decision.

The preliminary issue was whether the monetary threshold to bring an appeal was met.

Held: The monetary thresholds in s 352(3) of the 1998 Act were not satisfied, and there was no right of appeal.

Consideration

1. The claim before the Senior Member was an application for referral to an AMS for assessment of the appellant’s permanent impairment in order to determine whether the appellant’s permanent impairment satisfied the necessary threshold to pursue a claim for damages in the District Court, in accordance with s 26D of the Civil Liability Act. Part 2A of the Civil Liability Act makes special provision for offenders in custody. There was no dispute that the provisions applied to the appellant. ([52])
2. The question arose as to whether the relief sought by the appellant in his Statement of Claim, which was described in those pleadings as “damages”, constituted “compensation” for the purpose of satisfying the threshold to appeal the Senior Member’s decision as required by s 352(3) of the 1998 Act. The appellant argued that the CCTV footage was probative evidence of the circumstances of the injury. Whether it was or was not probative had no relevance to the question of whether the appellant meets the monetary threshold in order to appeal the Senior Member’s decision. ([53]–[54])
3. The rights of the appellant in this case were no different to Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25, and Anderson v Secretary, Department of Education [2018] NSWWCCPD 32. He had not claimed an amount of compensation and on the appellant’s own submission, his rights to claim damages do not “crystalise” until he meets the 15% permanent impairment threshold. ([56])
4. The appellant asserted that the word “compensation” was not defined in either the 1987 Act or 1998 Act. Wood DP held the word is clearly defined in s 4 of the 1998 Act for the purposes of both the 1987 Act and the 1998 Act and means compensation under those Acts. ([57])
5. Section 352(3)(a) of the 1998 Act clearly refers to “the amount of compensation” at issue on the appeal. It has long been accepted that, in circumstances where there is no monetary award made by the Member, the threshold question is to be determined by reference to the amount of the claim as particularised by the applicant. This appeared to be common ground between the parties. ([58])

(Grimson v Integral Energy [2003] NSWWCCPD 29 applied)

6. In this case, the appellant did not particularise an amount of compensation claimed or seek an order for compensation or any other monetary payment, however described. In the proceedings before the Senior Member, he was clearly not claiming compensation in the form of weekly payments, treatment expenses or a lump sum and the proceedings were limited to seeking an assessment in accordance with Part 7 of Chapter 7 of the 1998 Act. If he succeeded in reaching the necessary threshold, then his claim for damages would proceed in the District Court. That is, any monetary amount he would be seeking was not within the jurisdiction of the Personal Injury Commission. Whether the appellant would be entitled to an amount exceeding $5,000 pursuant to s 66 of the 1987 Act were he a “worker” was irrelevant. He was not a “worker” under the legislation and had no such entitlement. ([59])
7. The definition of damages provided for in s 149 of the 1987 Act is limited to being for the purpose of “this Part”, which is Part 5 (common law remedies). The definition of damages contained in s 149 does not deal with damages claimed in accordance with Part 2A of the Civil Liability Act (special provisions for offenders in custody) but that does not assist the appellant. It was further irrelevant that in the second reading speech of the Civil Liability Amendment (Offender Damages) Bill 2004, the Minister for Justice used the terms “damages” and “compensation” interchangeably. The issue in these proceedings was whether any monetary benefit sought by the appellant satisfied the definition of compensation as defined by the workers compensation legislation. ([60]–[62])
8. Section 4 of the 1998 Act defines “compensation” as meaning “compensation under the Workers Compensation Acts and includes any monetary benefit under those Acts.” The “compensation” referred to by the appellant was not, therefore, compensation under the 1987 or 1998 Act, regardless of the fact that the definition of damages contained in s 149 only applies to Part 5 of the 1987 Act. The amount of monetary benefit sought by the appellant is not prescribed or assessed under the workers compensation legislation. If the appellant reaches the necessary 15% permanent impairment, his entitlement will be assessed in accordance with the Civil Liability Act. That entitlement did not fall within the definition of compensation provided in s 4 of the 1998 Act and could not satisfy the monetary thresholds pursuant to s 352(3) of the 1998 Act. It followed that this appeal did not satisfy the monetary threshold pursuant to s 352(3) of the 1998 Act and there was no right to appeal the Senior Member’s Certificate of Determination. ([63]–[65])

Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3

WORKERS COMPENSATION – Consequential condition – circumstances in which a diagnosis of the condition is relevant – Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3, Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 discussed – requirement for expert medical opinion

Wood DP

24 January 2022

Facts

The appellant worker was injured on 31 July 2015 in the course of his employment as a storeman and packer with the respondent. The appellant was required to lift a heavy box, which fell onto his right hand, pinning his hand down. The appellant reported the injury two weeks later. Liability for the injury to the appellant’s right upper extremity, which was his non-dominant hand, was accepted.

The appellant subsequently alleged that he experienced pain in his left arm as a consequence of using his left upper limb more often because of the right arm injury. He further alleged that he had developed a complex regional pain syndrome (CRPS) as a result of the injury.

The appellant sought lump sum compensation pursuant to s 66 of the 1987 Act in respect of the permanent impairment of his right upper extremity, left upper extremity and CRPS. The respondent disputed that the appellant suffered a consequential condition in his left arm as a result of the injury and also disputed that the appellant suffered from CRPS.

The Principal Member did not accept that the appellant suffered a consequential condition in his left arm as a result of the injury and determined that the question of whether the appellant had a rateable diagnosis of CRPS was a matter for a Medical Assessor. She remitted the claim for lump sum entitlements to the President for referral to a Medical Assessor to assess the appellant’s right upper extremity and any CRPS affecting the right upper extremity. The appellant appealed that decision. The appeal was limited to the Principal Member’s findings in relation to the appellant’s left upper extremity.

The issues on appeal were whether the Member erred in:

(a) finding as a matter of law that a “diagnosis” was needed to determine if a consequential injury had occurred (Ground 1), and

(b) law in determining that the appellant’s consequential condition in the left hand bore a higher burden of proof because it was his dominant hand (Ground 2).

Held: The Principal Member’s Certificate of Determination dated 16 April 2021 was confirmed.

Consideration

1. The Principal Member’s determination that she was not satisfied that the appellant suffered from a condition in his left arm as a consequence of overuse was a factual determination involving a question of causation. In order to make such a determination, the Principal Member was required to give consideration to all of the evidence before her and the inferences that could be drawn from those facts. Such findings of fact will not normally be disturbed if they have rational support in the evidence. ([73]–[75])

(Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 ; 10 DDCR 156, and Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 applied)

Ground 1

2. The appellant submitted that a determination that a condition resulted from a work-related injury does not require a diagnosis, and the presence of symptoms is all that is required. The appellant relied upon Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 and Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 as authorities for that proposition. Wood DP held the appellant’s submission was misplaced. Each of those cases were determined on the basis of the available evidence and there was clear evidence and medical opinion that the worker’s symptoms were as a consequence of the work-related injury. There was no satisfactory contrary opinion. ([76])
3. The notion that it is not necessary to identify the pathology causing the symptoms is couched in terms of the issues for determination and the available evidence. In the present case, the evidence to some extent supported the notion that the appellant was relying more heavily on his left arm to perform some tasks, particularly in 2018 and 2019, and that the appellant attributed his left arm symptoms to those actions. The appellant reported using his left arm more to Ms Wild (hand therapist) and Dr Nabarro (hand and microsurgeon). Ms Crapp (rehabilitation provider) observed greater contribution from the left arm in performing bilateral tasks, and Dr Yu (pain management specialist) initially thought the left arm pain was probably due to overcompensation. The Principal Member referred to that evidence at [118] of her reasons. The issue before the Principal Member, however, was not limited to whether the appellant did or did not overuse his left arm. There was a clear issue as to whether the symptoms in the left arm resulted from overuse (which was the pleaded case) or some other cause, and, in the light of the conflict in the medical evidence as to those causes identified, a diagnosis which might lead to the identification of the cause of the appellant’s left arm condition was significantly relevant. In other words, there was substantial evidence that there was another cause for the symptoms in the left upper extremity. ([80]–[81])
4. While in many matters involving a claim for compensation in respect of a condition consequent upon an injury identification of a diagnosis is not necessary or relevant, each case turns on its own facts and the available evidence. The Principal Member considered that the absence of a diagnosis was unhelpful in the context of the tension between the allegation that the symptoms were caused by overuse and the various medical opinions that the symptoms were caused by a central neuropathic type pain, which no doctor attributed to overuse. It was apparent that an unequivocal medical opinion diagnosing a connection between the appellant’s left upper limb condition and overuse would have been of undoubted assistance. ([85])
5. The Deputy President did not accept that the Principal Member applied the wrong test or legal principle, or that she erred in observing that there was no clear diagnosis that would support the allegation that the appellant’s symptoms in the left upper extremity were as a result of the appellant overusing that arm. This ground of appeal failed. ([86]–[88])

Ground 2

6. The appellant submitted there was no distinction to be drawn between whether the arm that developed symptoms was the appellant’s dominant or non-dominant arm and that the Principal Member erred in requiring the evidence to address the specific tasks undertaken. The appellant submitted that the Principal Member erred in law by setting a higher standard of proof than was required. ([89])
7. The appellant submitted that the evidence of the appellant’s next door neighbour, Mr Poole, of itself was sufficient to conclude that the appellant’s left arm was overused. Mr Poole’s evidence fell far short of establishing the appellant’s case. Whether Mr Poole “felt” that the appellant was overcompensating by using his left side in order to avoid using his injured right arm, which in his view resulted in damage to the appellant’s left side, is far from compelling evidence as to the fact. Further, there was no evidence that Mr Poole was appropriately qualified to express a view on causation. The submission was rejected. ([90])
8. The appellant asserted that he used his left arm more because of the right arm injury. It was to some extent relevant that the appellant was left hand dominant in that people generally place greater reliance on their dominant arm to do more tasks than they would with their non-dominant arm in any event. In that context, it was not unusual that the Principal Member looked for evidence of the additional tasks undertaken, and the Principal Member was correct to say that she required evidence of what those tasks were. ([92])
9. The Principal Member concluded, after a careful review of the evidence, that there was no medical support for the proposition brought by the appellant that the condition in his left arm resulted from overuse. The Principal Member did not simply accept the respondent’s submission that specific tasks needed to be identified. She accepted the “general tenor” of the submission, which was that there needed to be evidence of the tasks the appellant was performing, together with expert medical opinion to support the notion that the condition in the appellant’s left arm was caused by performing those tasks. That was a straight-forward proposition. ([93])
10. Wood DP found the Principal Member did not place a higher burden on the appellant because the appellant’s left upper limb was his dominant arm. She assessed the evidence and reviewed the medical opinions before reaching the conclusion that the appellant’s case was not made out, primarily because of the absence of medical opinion to support the case put forward by the appellant. The appellant had not made out error as alleged and this ground of appeal failed. ([94]–[95])

Pirie v State of New South Wales (NSW Police Force) [2022] NSWPICPD 4

WORKERS COMPENSATION – leave to appeal an interlocutory decision – regulation 44 of the 2016 Regulation – reliance by the employer on two medical experts from the same specialty – worker refused to submit to a further examination by the first expert and the employer requested the worker submit to an examination by a second medical expert – the employer sought to rely on the reports of both experts – reference to repealed 2011 Rules in reasons – procedural fairness

Parker SC ADP

31 January 2022

Facts

The appellant worker was formerly employed by the NSW Police Force as a Manager of the Canobolas Local Area Command based at Orange Police Station. He commenced his employment with the NSW Police Force in 1973. Acting Deputy President Parker SC inferred that the appellant was not a “police officer” under the Police Act 1990.

The appellant sustained a number of injuries to his left and right knees. He sought lump sum compensation and made a claim for 20% whole person impairment. The respondent made an offer for lump sum compensation based on a 14% whole person impairment. Both parties agreed the matter should be referred to a Medical Assessor to assess whole person impairment.

The issue before the Member was whether the Medical Assessor should be provided with reports commissioned by the employer from two orthopaedic surgeons, namely, Dr Panjratan (dated 28 July 2020, with supplementary reports dated 21 September 2020 and 14 December 2020), and a report of Dr Doig, dated 29 December 2020, or whether because of the constraints imposed by clause 44 of the 2016 Regulation the employer was required to elect between the reports of Dr Panjratan or the report of Dr Doig.

The report of Dr Doig was commissioned by the respondent, as it had requested the appellant submit to a further medical examination by Dr Panjratan. The appellant objected to a further examination by Dr Panjratan, and the respondent provided the appellant with the option to be examined by three alternate doctors, one of which was Dr Doig. The appellant agreed to submit to a medical examination by Dr Doig.

The Member directed that reports from both doctors be placed before the Medical Assessor. The worker appealed.

The issues on appeal were whether the Member erred in law by:

(a) incorrect construction of cl 44 of the 2016 Regulation;

(b) referring to repealed Rules, and

(c) his denial of procedural fairness ruling.

Held: Leave to appeal the Member’s Certificate of Determination dated 8 April 2021 was refused.

Leave to appeal an interlocutory decision

1. Acting Deputy President Parker SC determined that leave to appeal an interlocutory decision should not be granted. Leave is not to be granted unless it is “necessary or desirable” for the proper determination of the parties’ dispute. The “dispute” relevant to the Member’s determination and to the appeal went to what documents should go before the Medical Assessor. But it was plain that the present “dispute” was peripheral to the real issue in the proceedings, namely what was the appropriate assessment as determined by the Medical Assessor. An objective of the scheme is the timely disposition of disputes. In the Acting Deputy President’s view, further agitation of the present peripheral dispute was neither necessary nor desirable from the point of view of the true issues between the parties. ([62(a)]–[63])
2. The necessity for the further report from Dr Doig arose from the request by the appellant that he not be re-examined by Dr Panjratan. In the Acting Deputy President’s view, it would be unfair (“not desirable”) for the respondent to be deprived of an up-to-date medical review of the appellant for reasons generated by the appellant. He also noted the appeal was inherently likely to and inevitably had delayed the assessment by the Medical Assessor. ([62(b)–(c), (h)])
3. The Acting Deputy President noted that Dr Doig’s report was by way of an “update” and expressed the same conclusion as to the whole person impairment as Dr Panjratan. He held it was doubtless of assistance to the Medical Assessor to have available material which suggested that the appellant’s impairment has remained constant from the examination in July of 2020 to the examination in December of 2020. It enhanced the conclusion that the appellant’s condition was stable and that the assessment should proceed. ([62(d)–(e)])
4. The proper and effective determination of the real dispute between the parties will depend upon the Medical Assessor’s independent conclusion as to the whole person impairment. A properly instructed Medical Assessor is unlikely to be overly or improperly influenced by the fact that the employer has had the appellant examined by two orthopaedic specialists. ([62(f)])
5. The purpose of cl 44 is to prevent the Commission from being overwhelmed by large numbers of medical reports from different referees of the same speciality and to discourage “doctor shopping” whereby a party seeks to obtain a favourable opinion from a doctor when confronted with less favourable opinions from other referees. In the Acting Deputy President’s view, that was not the situation prevailing in this matter. ([62(g)])
6. In any event, Parker SC ADP held that the substantive grounds of appeal were not established. ([64])

Ground 1

7. In Acting Deputy President Parker SC’s view, cl 44 does not apply to the medical reports to be submitted to the Medical Assessor. This was because there is a difference between a “proceeding on a claim” before a Member and the medical assessment by a Medical Assessor. This did not involve a “medical report [being] admitted on behalf of a party to proceedings”. ([74]–[79])

   (Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 applied)

8. In the Acting Deputy President’s view in the present matter, cl 44 of the 2016 Regulation likewise did not preclude the placing of the reports of Drs Panjratan and Doig before the Medical Assessor. In this matter, the reports were to be placed before the Medical Assessor who may not as readily be able to determine the use that is permitted to be made of the reports. The Acting Deputy President would not uphold the Member’s finding on the basis of the decision in McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96 . However, the Member was correct to permit the reports of Drs Panjratan and Doig to be placed before the Medical Assessor. Ground 1 of the appeal was rejected. ([80]–[85])

Ground 2

9. Rule 15.1(1) of the repealed Workers Compensation Commission Rules 2011 provided: “Where proceedings are referred to an Arbitrator, the Arbitrator may, while the referral continues, make any order relating to the procedure to be followed in the proceedings (including an order striking out the proceedings or any step in the proceedings) that could be made by the Registrar”. ([88])
10. Rule 9 of the Personal Injury Commission Rules 2021, as applicable to this matter, provides: “A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings including an order striking out the proceedings of any step in the proceedings, that could be made by the President”. ([89])
11. The Member was aware because the solicitor for the appellant informed him that the Workers Compensation Commission Rules 2011 had been repealed by the Personal Injury Commission Rules 2021. What the solicitor did not do was to assist the Member by directing his attention to the relevant Personal Injury Commission Rule. ([90])
12. The Acting Deputy President held it was plain that the Member was seeking assistance as to the rule then in position equivalent to r 15.1 of the Workers Compensation Commission Rules 2011. Neither representative was able to direct his attention to the precise rule. Nevertheless, there was a rule and it was patent from the transcript that the Member was conscious that his authority to make a procedural direction depended on the then current Personal Injury Commission Rules 2021. With respect to the appellant and the respondent, where the precise rule could not be identified immediately, they ought to have provided a reference to the correct rule after the proceedings had concluded and when a published version of the relevant rule was available. ([95]–[96])
13. Neither the appellant nor the respondent directed any submission to the applicability of r 9 of the Personal Injury Commission Rules 2021. The Acting Deputy President therefore accepted that the only issue concerned the Member’s reference to the previous rules. As was clear from the transcript, the Member sought to and did apply the operative Personal Injury Commission Rules 2021. No error was established. Ground 2 was rejected. ([97]–[98])

Ground 3

14. The appellant submitted that cl 44 is a statutory prohibition on the Member preventing him from directing that the Medical Assessor be provided with the reports of Dr Panjratan and Dr Doig and that in this circumstance there could be no denial of procedural fairness to the respondent. A passage from the judgment of Deane J in Kioa v West [1985] HCA 81; 159 CLR 550 (Kioa) was relied upon. The Acting Deputy President rejected this submission. He noted that the lengthy discussion undertaken in the High Court in Kioa concerned the circumstance in which administrative decision makers had a duty to act fairly and to accord procedural fairness. Parker SC ADP held the Personal Injury Commission is subject to s 43 of the 2020 Act. Section 43 provides clear legislative intent, and, in the Acting Deputy President’s view, the Member was entitled in good conscience to allow the reports from the two orthopaedic surgeons to go forward to the Medical Assessor. Ground 3 was not made out. ([106]–[109])