New South Wales Supreme Court CITATION : Pitsonis v Registrar of the Workers Compensation Commission & Anor [2007] NSWSC 50 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 06/02/2007 JUDGMENT DATE : 13 February 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The summons is dismissed. The plaintiff is to pay the costs of the proceedings. CATCHWORDS : Judicial review - appeal by application to the Registrar - test to be applied by Registrar - conflicting authority - demonstrable error - incorrect criteria - failure to discharge onus. Supreme Court Act 1970 (NSW) LEGISLATION CITED : Workers Compensation Act 1987 (NSW) Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 Craig v South Australia (1995) 184 CLR 163 CASES CITED : Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007]NSWSC 22 Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2005]NSWSC 1260 Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 Marina Pitsonis PARTIES : Registrar of the Workers Compensation Commission State of New South Wales (NSW Department of Education and Training) FILE NUMBER(S) : SC 30064/06 COUNSEL : Ms S Norton SC / Ms E Welsh (Pl) Mr J Catsanos (2nd Def) SOLICITORS : MacMahon Associates Pty Ltd Solicitors (Pl) Moray & Agnew (2nd Def) LOWER COURT JURISDICTION : Workers Compensation Commission LOWER COURT FILE NUMBER(S) : 19971-04 LOWER COURT JUDICIAL OFFICER : Mr Wayne Wormald LOWER COURT DATE OF DECISION : 1/11/2005 LOWER COURT MEDIUM NEUTRAL CITATION : Marina Pitsonis v NSW Department of Education and Training - 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 13 FEBURARY 2007 30064/2006 Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor JUDGMENT 1 HIS HONOUR-: The plaintiff was employed by the second defendant as a special education teacher. On 30 January 2002, she was assaulted by a student. She received physical injuries (to her right elbow and right knee) and claims to have suffered psychiatric injury. She has continued to live in the Bega area on a small farm and is involved in the breeding of alpacas. 2 In February 2002, she made a claim for compensation. The claim for compensation is pursued in respect of the alleged psychiatric illness only. 3 On 6 December 2004, the plaintiff made application to the Workers Compensation Commission (the Commission) to resolve a dispute. She was pressing a claim pursuant to section 66 of the Workers Compensation Act 1987 (NSW). A telephone conference failed to produce any agreement in respect of the quantum of her claim. The dispute was referred to an approved medical specialist (Dr Parmegiani). 4 Dr Parmegiani took a history and examined the plaintiff on 4 April 2005. He was provided with documentation (including a statement from the plaintiff). He issued his medical assessment certificate (the certificate). He found a seven percent whole person impairment. On 15 July 2005, the plaintiff made application to the Registrar pursuant to section 327(4) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) . It prescribed the manner in which an appeal is to be made. What is appealable is identified in s327(2). It reads as follows:- "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." At the time of the application the sub-section(4) was in the form as follows:- "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." 5 The specified grounds of appeal were availability of additional relevant information, incorrect criteria and demonstrable error. Written submissions were made in support of the application. The written submissions made by the plaintiff in these proceedings contained, inter alia, the following:- "The submissions filed in support of the application for appeal complained that there were inadequacies in the histories taken by Dr Parmegiani and that the doctor failed to consider some very significant ongoing disabilities and failed to apply the history and his findings when considering whether the criteria under the WorkCover Guides for the Evaluation of Permanent Impairment, Chapter 11 were met." 6 The appeal did not proceed. The Registrar decided that it did not appear that at least one of the specified grounds for appeal exists. 7 The role of the Registrar (or a delegate thereof) in dealing with such an application under sub-section (4) (as it then was) has been the subject of a number of decided cases. This statutory provision contained a difficult collocation of words. The case law on it threw up different approaches to the question. The approaches appeared to reflect individual impressions of the statutory language. The most recent consideration took place in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284. The judgments in this case were delivered subsequent to the decision of the delegate. The judgments of Handley JA at paragraph 8 (with whom McColl JA agreed) and Basten JA at paragraphs 133-134 (McColl JA agreed generally with his reasons) contain obiter dicta on the question. This obiter dicta also threw up differences of approach (including between Handley JA and Basten JA). Basten JA further observed that it was not entirely clear whether what had been said by him on the question was entirely consistent with the approach accepted and apparently applied by other judges (the primary judge in Vegan and Hislop J in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2005] NSWSC 1260). 8 The primary judge (who may have been the first judge to address the question) appears to have taken the approach that the Registrar must be satisfied of error for the matter to be referred to the Appeal Panel (Hislop J inferred that it was to be determined on the balance of probabilities). 9 In the circumstances it has to be said that the law concerning this statutory provision stood in a state of uncertainty. This uncertainty left any Registrar (or delegate) in an invidious position. 10 It would seem that the legislature has sought to address this problem. Sub-section(4) was amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (NSW) (which I am told was proclaimed subsequent to the Court of Appeal decision in Vegan). The amendment that was made was as follows:- "Omit "it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists" from section 327(4). Insert instead "the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out". 11 This amendment would appear to have removed the uncertainty that had previously existed as to the proper construction of the sub-section. Under the amended provision, the appeal does not proceed unless the Registrar is satisfied that at least one of the specified grounds of appeal has been "made out" (words which I used in Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954). 12 The amendment would appear to accord with what was said by the primary judge and in, inter alia, Wikaira (which for reasons of judicial comity Hislop J chose to follow in Riverina Wines). Whilst I am informed that no assistance can be gleaned from what has been said by Parliament, it is likely that the purport of the amendment was to deal with the uncertainty and to clarify what had been the original intention of the legislature. 13 On 9 May 2006, the plaintiff filed a summons in this Court. It seeks relief in the nature of judicial review (s69 of the Supreme Court Act 1970 (NSW)). It seems to be generally accepted that the scope for intervention is as expressed in Craig v South Australia (1995) 184 CLR 163 at 179. 14 The hearing took place on 6 February 2007. Counsel have relied on written submissions. The writing has been supplemented by oral argument. 15 There was argument as to the tests that should be applied by the delegate when having regard to the specified grounds. The plaintiff took the stance that the approach presented by Basten JA should be adopted (it was said to be that a specified ground could not be "dismissed as patently untenable or colourable" . The second defendant took the position that the role of the Registrar was to decide whether or not any specified ground of appeal had been made out. 16 In my view, these proceedings can be disposed of without further addressing that matter. Whilst I still maintain the view taken in Wikaira (see Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22), it is not suggested that the delegate applied the wrong test in this case. The reasons do no more than employ the statutory language. It was conceded that it was not possible to discern which test had been applied. 17 There was some desultory argument concerning what comprised "the record". The argument was not pursued as there appeared to be a consensus that the matter was not of significance in this case. 18 The plaintiff appeared to abandon a submission that the record included all documents which the delegate had before him when he made his decision. The case proceeded on the basis that the certificate and the decision of the delegate was the relevant documentation. 19 Some brief discussion took place as to the meaning to be attributed to the words "demonstrable error". These words are not defined in the Act. It may be said that the proper meaning to be given to these words in their statutory context remains at large (sub-section (3)(d) requires that the certificate contain such an error). 20 A dictionary meaning given to "demonstrable" is "capable of being shown or logically proved". It would appear not to be intended to include "obvious error" which the Registrar has the power to correct (s325(3)). 21 In Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939, Hoeben J said that it was sufficient for the purposes of determining that case to conclude that such an error is an error that is readily apparent from an examination of the medical assessment certificate and the document referring the matter for assessment. He also observed that error alone was not sufficient. 22 The second reading speech contains the following concerning "demonstrable error" and "incorrect criteria":- "A demonstrable error would essentially be an error for which there is no information or material to support the finding made-rather than a difference of opinion. It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied." 23 Save for references to certain of this material, the expressions "demonstrable error" and "incorrect criteria" excited no further argument. 24 Whilst three specified grounds were relied on in the application to the Registrar, only two are looked to in these proceedings (the specified ground in sub-section (3)(b) of availability of additional relevant information was no longer pursued). The additional evidence is restricted to that which was not available to the appellant before the medical assessment appealed against, or that could not reasonably have been obtained by the appellant before the medical assessment. 25 Whilst the reasons for the abandonment of this ground were not elaborated, it may be that it was because the evidence did not fall within the confines of that restriction. 26 In the application made to the Registrar, the plaintiff relied not only on submissions but proffered a statement from each of Marie Hiavic and Robert Porter. The submissions contained assertions of fact said to have been made on the instructions of the plaintiff herself. The statements and the assertions contained material suggesting factual error in the assessment made by Dr Parmegiani. 27 The certificate has the status accorded to it by section 326 of the Act. 28 In so far as a challenge is made in this Court to his assessment on the basis that the certificate contains demonstrable error the case is maintained largely by way of the assertion of alleged error or inadequacy in the history which forms part of the certificate (there was also an apparent allegation of inconsistency between a finding that the plaintiff's memory was in tact and the recorded history (she was a poor historian)). This allegation can be immediately put aside as I am not satisfied that it can be sustained. 29 Generally speaking, in the present case, it is said that the error in, or inadequacy of, history was, inter alia, of the nature of either a failure to record or accurately record history that was given or a failure to ask relevant questions (see paragraphs 24 and 25 of the plaintiff's written submissions). 30 In the present case, the initial problem confronting the plaintiff is the difficulty had in the demonstration of such error. There is an evidentiary hurdle which she could not overcome. All that the plaintiff can look to is competing assertion (made subsequent to the certificate) and speculation. The contents of the certificate do not support the assertion of error. In the circumstances the challenge failed at this threshold stage. 31 The reaching of that view makes it unnecessary to further consider whether any alleged error could constitute a "demonstrable error" which the certificate contains. 32 Accordingly, I am not satisfied that there was error on the part of the delegate in dealing with this ground. 33 I now turn to the allegations made in support of the argument that the assessment was made on the basis of incorrect criteria (see paragraphs 26-29 of the plaintiff's written submissions). 34 In dealing with these allegations, the initial problem is that of discerning the meaning to be attributed to the language that expresses this ground of appeal. It was not a matter that was really dealt with in submissions. It seemed to be common ground that the WorkCover guides for the evaluation of permanent impairment of Chapter 2 (the guidelines) fell within the statutory concept of "criteria". However, what is contemplated by the language of the ground is far from clear. A literal construction of the statutory provision could suggest that the ground exists where incorrect criteria has been used in the making of the assessment (as opposed to error in the application of correct criteria). This may not be consistent with what was said by Parliament ("It is designed to cover circumstances where the guides themselves have been incorrectly applied"). This statement may be regarded as not being helpful. For present purposes it suffices to say that whatever was intended did not include an appeal on the merits. 35 In dealing with this aspect of the matter, the Court was taken to Table 11 which is the psychiatric impairment rating scale (PIRS). It provides that behavioural consequences of a psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment. Table 11.12 and 11.13:- "11.12 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment: 1. Self care and personal hygiene (Table 11.1) 2. Social and recreational activities (Table 11.2) 3. Travel (Table 11.3) 4. Social functioning (relationships) (Table 11.4) 5. Concentration (Table 11.5) 6. Employability (Table 11.6) 11.13 Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms." 36 The assessment of the scales provided by Table 11.1 and 11.2 are not challenged. In the case of Table 11.3, the plaintiff was assessed as being of class 1 (no deficit or minor deficit). It is contended that she should have been assessed as being of class 2 (mild impairment). 37 In the case of Table 11.4, she was assessed as being of class 3 (moderate impairment). It is contended that she should have been assessed as being of class 4 (severe impairment). 38 In the case of Table 11.5, she was assessed as being of class 2 (mild impairment). It is contended that she should have been assessed as being of class 3 (moderate impairment). 39 In the case of Table 11.6, she was assessed as being of class 2 (mild impairment). It is contended that she should have been assessed as being of a higher class. 40 There is no issue between the parties that Dr Parmegiani purported to make his assessment using correct criteria. The case presented by the plaintiff to this Court on this ground is put in terms of failure to correctly apply the guidelines. Despite such formulation, the substance of the case is different. On one view of the scope of the ground, such a case would not fall within its compass. 41 This presentation also differs from what was submitted to the delegate (see paragraph 22 of the plaintiff's written submissions). For this reason alone, I do not consider that it can be the subject of relief in this Court. 42 The second defendant categorises the case as being of the nature of alleged errors in the assessment process and as going to the merits of the assessment made by Dr Parmegaini (the plaintiff's arguments were directed "to the way in which the correct criteria was assessed"). In my view, this approach identifies what was really being advanced by the plaintiff. 43 The assessment process required Dr Parmegiani to undertake an evaluation of the material placed before him in the context of the guidelines. The substance of the case now presented by the plaintiff to this Court is one of error in the manner in which he dealt with that material (inter alia, failure to consider what was said to be very significant on-going disabilities and to apply history and findings when having regard to the guidelines). Leaving aside what has been earlier said, I do not consider it to be a case that falls within sub-section (3)(c). 44 In the circumstances of this case, I am not satisfied that the assessment was made on the basis of incorrect criteria. In my view, the delegate did not fall into error. 45 For completeness, I should add that the nature of the remedy sought by the plaintiff is a discretionary one. Relief may not be granted if the existence of the ground is not material to the assessment that is made. 46 In conclusion, it suffices to say that the plaintiff bears the onus of demonstrating an entitlement to relief. I am not satisfied that onus has been discharged. 47 The summons is dismissed. The plaintiff is to pay the costs of the proceedings. ********** 05/03/2007 - wrong percentage figure quoted - Paragraph(s) 4 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.