New South Wales Supreme Court Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 21 September 2005 JUDGMENT DATE : 27 September 2005 Common Law Division JURISDICTION : Administrative Law List JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The decision made by the Registrar on 27 June 2005 is set aside; the matter is remitted back to the Registrar for determination according to law; the second defendant is to pay the costs of the summons; the exhibits may be returned CATCHWORDS : Judicial review of medical assessment - determination to be made by Registrar barrier to the proceeding of the appeal - nature of the determination. LEGISLATION CITED : Workplace Injury Management and Workers Compensation Act 1998 Campbelltown City Council v Vegan [2004] NSWSC 1129 CASES CITED : Craig v South Australia (1995) 184 CLR 163 Lesley Michelle Wikaira (Plaintiff) PARTIES : Registrar of the Workers Compensation Commission of New South Wales (First Defendant) State Rail Authority of New South Wales (Second Defendant) FILE NUMBER(S) : SC 30061/05 Mr J W Dodd (Plaintiff) COUNSEL : Submitting appearance (First Defendant) Mr G Barter (Second Defendant) McCabe Partners (Plaintiff) SOLICITORS : I V Knight Crown Solicitor (First Defendant) Hicksons (Second Defendant) LOWER COURT JURISDICTION : Workers Compensation Commission of New South Wales LOWER COURT FILE NUMBER(S) : WCC 13270-04 LOWER COURT JUDICIAL OFFICER : Registrar Walker - 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Associate Justice Malpass 27 September 2005 30061 of 2005 Lesley Michelle Wikaira v Registrar of the Workers Compensation Commission of New South Wales & Anor JUDGMENT 1 His Honour: The plaintiff was an employee of the second defendant. On 22 August 2000, the plaintiff slipped whilst mopping the floor of a railway carriage causing injury to her back, neck and both shoulders. She received weekly payments of compensation until 14 June 2002. On 17 May 2004, the plaintiff lodged a claim for weekly benefits, medical expenses and non-economic loss compensation. The insurer denied liability. 2 On 30 August 2004, the plaintiff brought an application to resolve a dispute. The dispute came for determination before an arbitrator (Carolyn Rimmer). The arbitrator had before her, inter alia, the oral evidence of the plaintiff and documentation (including reports from various doctors). 3 The arbitrator decided that the plaintiff was entitled to weekly compensation and the payment of certain expenses. 4 In the statement of reasons for her decision, the arbitrator observed that she accepted the plaintiff as a truthful witness. 5 There was a concession by the second defendant that the plaintiff had sustained orthopaedic injuries to her neck, back and shoulders in the incident of 22 August 2000. 6 The arbitrator recorded a further concession that the consensus of the medical evidence was that the plaintiff was not fit to perform the type of work that she had been doing with the second defendant. There was also an observation that there had been no real improvement in the plaintiff's symptoms and that she would not be capable of working more than 20 hours a week. 7 The dispute next came (by way of referral from the arbitrator) before an approved medical specialist (Dr Matheson) for determination of permanent impairment. 8 Dr Matheson had a history and his own examination of the plaintiff. He also had before him medical reports and "GP handwritten notes". The reports provided evidence of injury. 9 Dr Matheson determined that there was no permanent impairment and issued a certificate to that effect. The facts on which he had based his assessment were expressed to be "The history given by the patient, the physical examination of the patient and the accompanying notes". 10 The certificate contained the following:- 5. Summary including:- · summary of injuries and diagnoses: The diagnosis here is of a somatised disorder and there is no evidence of an injury. · my brief comments on consistency of presentation and relationship between the lesion of lesions diagnosed and the incidents or incidents described are [sic] (my detailed discussion on the other medical opinions is addressed under "Reasons"). There is no consistency here. There is no such thing as symptoms that last unchanged over a period of four to five years, especially headaches. She just gives generic complaints of symptoms and there is no consistency with the accident. The accident was a mild stumbling incident without even falling to the ground. It could not have produced an injury to the neck, the back, or the shoulders or any other part of the body for that matter. This appears to be an entirely contrived disorder and as far as I can see from the accompanying notes is associated with her dysfunctional family background and her need to look after her four children. Her husband is apparently an alcoholic. Mrs Wikaira has also drunk heavily according to the notes and she reports to me that there are behavioural problems with one of her daughters at present. … … … Assessment is based on a percentage loss of efficient use as against a most extreme case. I am unable to document any abnormality to calculate for loss. As far as other medical opinions are concerned, no one has documented anything definite. Dr Mahony talked of cervical and lumbar strains. Dr Patrick was a bit wary in giving a diagnosis but felt she might have had a shoulder tear. Dr Mattar, psychologist, talked about a pain disorder and gave various other functional diagnoses. Dr Tran, psychiatrist, talked about adjustment disorder. I could not read the GP notes. Dr Higgs opined that she had a cervical strain and labrale tear. Dr Downs gave a different diagnosis of aggravated joints. Dr Kafataris diagnosed an interscapular muscle injury. The comment to be made on these is that a feature of somebody with no injury present is that multiple different diagnoses are made and no firm abnormality found. 11 On 8 April 2005, the plaintiff lodged an application to bring an appeal against the decision of Dr Matheson. The appeal is brought pursuant to s327 of the Workplace Injury Management and Workers Compensation Act 1998 (the Act). 12 The relevant provisions contained in s327 are as follows:- 327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists. 13 The appeal came to the Registrar (of the Workers Compensation Commission of New South Wales) pursuant to subs(4). The grounds for appeal relied on by the plaintiff were those set forth in (c) and (d) of subs(3). 14 The material that was considered by her or should have been considered by her may be a matter of surmise or debate (I should add that no full debate on these matters took place before this Court). 15 The Registrar had before her, inter alia, submissions from both the plaintiff and the second defendant. She may also have had any file material in respect of the dispute. 16 On 27 June 2005, the Registrar decided that it did not appear to her that at least one of the grounds of appeal existed. 17 The reasons given for that decision were as follows:- 5. After consideration of the submissions received from the Appellant and Respondent it does not appear that the assessment was made on the basis of incorrect criteria or that the medical assessment certificate contains a demonstrable error for the following reasons: · The Arbitrator referred the worker for assessment of the neck, back, right arm at or above the elbow, and left arm at or above the elbow attributable to the date of injury of 22 August 2000. The Arbitrator noted on the referral to the Approved Medical Specialist that: "Application includes a nature and conditions claim from 22/8/00 to 31/12/01. Parties agreed that on the medical evidence the Applicant's orthopaedic injuries all arose from the incident on 22/8/2000 and the AMS is requested to assess the matter on that basis. The nature and conditions claim was agreed to apply to the chronic adjustment disorder and depression." The Approved Medical Specialist has provided an assessment of the permanent impairment of these body parts attributable to the date of injury of 22 August 2000 as requested by the Arbitrator. · The Appellant submissions address differences of medical opinion and interpretation and do not reveal that the Approved Medical Specialist applied incorrect criteria or medical assessment certificate contains a demonstrable error. · There is nothing on the face of the record of the medical assessment certificate that indicates that the findings made by the Approved Medical Specialist on the basis of information and material provided to the Approved Medical Specialist, and also clinical observation, amounts to the use of an incorrect criteria or demonstrable error. · An Approved Medical Specialist is entitled to assess the Applicant's impairment or losses independent of the assessments contained in medical reports provided to the Approved Medical Specialist. 18 On 22 July 2005, the plaintiff filed a summons in this court. It sought judicial review of the decision (inter alia, to have the decision of the Registrar set aside). Only the relief sought in prayer 1 was pressed. 19 The proceedings were heard on 21 September 2005. The first defendant filed a submitting appearance. The second defendant defended the proceedings. 20 The Act does not provide any right of appeal from the decision of the Registrar. It was common ground that this court had jurisdiction to entertain the proceedings pursuant to s69 of the Supreme Court Act 1970. It was common ground that the plaintiff had to demonstrate either jurisdictional error of law or an error of law on the face of the record (which contains the reasons for the ultimate determination). 21 It seemed to be common ground that the scope for intervention in the case of jurisdictional error was as expressed in Craig v South Australia (1995) 184 CLR 163 (at 179) where it was said:- If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 22 Both parties looked to the decision of Campbelltown City Council v Vegan [2004] NSWSC 1129. It was said to be the only decision known to the parties that may be of assistance in dealing with these proceedings (it dealt with a challenge to a decision of the Appeal Panel). Whilst it did not focus on the question of a challenge to a decision of the Registrar, observations were made concerning it. 23 There seemed to be no dispute that the Registrar was entitled to take into account what was before the arbitrator and found by her as well as what was done by Dr Matheson. 24 There was some dispute as to the nature of the exercise that the statute required the Registrar to perform. The second defendant saw it as a discretionary exercise. 25 In my view, such an approach is not correct. It seems to me that the section requires the Registrar to make a determination (that is, that it appears that at least one of the specified grounds for appeal exists). When that determination is made, the barrier to the appeal proceeding is removed. 26 What the making of such determination might involve may be thought to be somewhat unclear. The parties initially appeared to be in some doubt on this question. Later, they appeared to have moved to the position that the Registrar was required to determine whether or not it appeared that there was an arguable specified ground of appeal. Upon further reflection, I have come to the view that this was not what was intended by the Legislature. This view seems to be consistent, inter alia, with the structure of the legislation, the language used in s327(4) ("exists") and the nature of the appeal provided by s328 of the Act. 27 The role given to the Registrar is that of determining whether or not the appeal is to proceed. It seems to me that in the performance of that role the Registrar is required to determine whether or not there is a ground of appeal. If it appears to the Registrar that such a ground is made out ("exists"), the appeal then proceeds (save for any referral pursuant to s327(6) of the Act). It is heard by the Appeal Panel (s328) by way of review. 28 Largely, what was said by counsel was directed to the matter of demonstrable error. Little was said to elaborate the bare allegation of incorrect criteria. 29 It seems to me, whether or not regard is had to what was done by the arbitrator, that the medical assessment certificate contained a demonstrable error. The contents of the certificate show that Dr Matheson had come to the view that there was no permanent impairment because of his view there was no evidence of an injury. Not only was there evidence of injury, the fact of injury had been established. It was referred to him to make an assessment on the basis of agreement between the parties that the medical evidence showed that the plaintiff's orthopaedic injuries arose from the incident of 22 August 2000. The task he had to perform was to determine whether that injury gave rise to permanent impairment. 30 In my view, in the circumstances of this case, I am satisfied that the Registrar fell into requisite error in approaching and in performing the role prescribed by s327(4) of the Act. 31 I am satisfied that the decision made by the Registrar on 27 June 2005 should be set aside. The matter is remitted back to the Registrar for determination according to law. The second defendant is to pay the costs of the summons. The exhibits may be returned. ********** 06/10/2006 - - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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