Supreme Court New South Wales Medium Neutral Citation: Western Sydney Local Health District v Chan [2015] NSWSC 1968 Hearing dates: 2 December 2015 Decision date: 22 December 2015 Jurisdiction: Common Law Before: Adams J Decision: 1. Summons dismissed. 2. Plaintiff to pay the costs of the first defendant. Catchwords: ADMINISTRATIVE LAW – judicial review – decision of Appeal Panel constituted under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether finding that Approved Medical Specialist had considered all relevant material in assessing Whole Person Impairment was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds" Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 322, 325, 327, 328 Cases Cited: Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; 207 ALR 12 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 198 ALR 59 Category: Principal judgment Parties: Western Sydney Local Health District (plaintiff) Lolita Chan (first defendant) An Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (second defendant) The Registrar of the Workers Compensation Commission (third defendant) Representation: Counsel: C Jackson (plaintiff) E G Romaniuk SC/ G A Horan (first defendant) Solicitors: Gair Legal (plaintiff) Turner Freeman Lawyers (first defendant) Crown Solicitor for NSW (second and third defendants) File Number(s): 2015/237924 Judgment Introduction 1. The plaintiff appealed from a Medical Assessment Certificate made on 4 August 2014 by Dr Parmegiani, an Approved Medical Specialist (AMS), to an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (all legislative references are to this Act). The Panel, comprising two approved medical specialists and one arbitrator, confirmed Dr Parmegiani's certificate. The plaintiff seeks orders in effect setting aside the Panel's decision and remitting the matter back to a Panel for reconsideration. 2. The plaintiff relied on two grounds: firstly, that the Panel erred in finding that Dr Parmegiani had taken into account a revised assessment of the worker's Whole Person Impairment (WPI) of 6% in the course of rejecting the employer's grounds of review, an error which the plaintiff alleges went to jurisdiction; alternatively, that the Panel erred in failing to find that Dr Parmegiani had demonstrably erred in failing to provide adequate reasons to support his decision. The plaintiff pressed only the first ground. Legislation 1. Workplace Injury Management and Workers Compensation Act 1998 (NSW) Section 319 Definitions In this Act: approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist. medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) … (b) … (c) the degree of permanent impairment of the worker as a result of an injury, (d) … (e) … (f) … (g) … Section 322 Assessment of impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose. (2) … (3) … (4) … Section 325 Medical assessment certificate (1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the Registrar and is to: (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters, and (c) set out the approved medical specialist's reasons for that assessment, and (d) set out the facts on which that assessment is based. (3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error. (4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence. Section 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) … (3) The grounds for appeal under this section are any of the following grounds: (a) … (b) … (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) … (5) … (6) … (7) … (8) … 328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal. (3) … (4) … (5) … (6) … Factual background 1. The following facts are substantially taken from the plaintiff's submissions, which were not disputed at hearing, and the affidavit of the plaintiff's solicitor of 14 September 2015. The first defendant, Lolita Chan, was employed by the plaintiff, Western Sydney Local Health District, as a dietician. She had been receiving weekly benefits for injury to her lumbar spine which occurred on 27 July 2010 and a psychological injury which developed from April 2003 to 24 November 2010, being the "deemed date of injury". The former injury resulted when she was hit by a door knob in the lower back at work, whilst the latter injury was described by Ms Chan as being a "primary psychiatric injury, psychological injury, anxiety adjustment disorder and major depression as a result of being harassed, bullied and victimised at work by… [the] Manager [of] the Respondent Employer and its representatives…" This injury is the subject of the current proceedings. In November 2012 she was informed that her entitlement to weekly benefits would cease on 24 December 2012 on the basis that she no longer suffered from her injuries, her employment was not a contributing factor to them, she had fully recovered and she had no entitlement to payment for any related expenses. 2. In December 2012 the plaintiff lodged an Application to Resolve a Dispute form with the Workers Compensation Commission. As part of this application, Ms Chan provided a psychiatric report of Dr Akkerman of November 2012 in which he diagnosed her with Major Depression. Dr Akkerman observed that she "can work in her old job part time" but that this "employment was a substantial contributing factor [to her current condition]". The psychiatrist assessed her WPI at 19%, with a 1% correction for treatment, noting that she "would deteriorate by 1% if treatment was stopped", therefore a total WPI of 20%. In January 2013 the plaintiff lodged a Reply, supplemented by a number of further reports, including five reports of a psychiatrist, Dr Snowdon. His report of 27 August 2013 assessed her WPI at 17% but he amended this to 6% in a supplementary report of 2 December 2013. Essentially, the reduction arose from Dr Snowden's view of the significance of further documentation provided by the plaintiff's insurer which, relevantly, included a letter from Ms Chan to the Human Resources Manager of her employer, statements concerning Ms Chan by her supervisor, Ms Boyagi, and the Rehabilitation Co-ordinator at her workplace, Ms Doan, and an email from Ms Doan to the plaintiff's solicitor. These documents primarily concerned Ms Chan's employment at Cumberland Hospital between July 2011 and November 2013 when she worked in a clerical position in the hospital's Transport Department. Her supervisor and Rehabilitation Co-ordinator observed that she experienced minimal difficulties in this position, was well-presented, neat, happy, capable of multi-tasking and eager to return to her previous role as a dietician, although at a different hospital to her previous workplace where she sustained her injuries. The reports referred to some occasions in which Ms Chan experienced difficulties in this workplace. However, their overall impressions of Ms Chan's health and psychological state were positive. 3. Based on these documents, Dr Snowdon, having briefly quoted the salient parts, found that "there is evidence … to support there being no issues in Ms Chan's self-care and personal hygiene … [and] that her concentration is unaffected". As a result, Dr Snowdon revised down the scores he had originally assigned Ms Chan in his previous report with respect to Self-Care and Personal Hygiene and Concentration, Persistence and Pace "in light of this new evidence", resulting in the revised WPI of 6%. It is important to note, however, that Ms Chan was working only 20 hours a week, had given details of having some problems at work not referred to in the additional documentation, and significant problems outside the work environment, none of which were adverted to, let alone discussed. 4. A Medical Assessment Certificate (MAC) had been produced by a psychiatrist, Dr Baker, on 14 February 2014 in which he assessed Ms Chan as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood caused by her work-related psychological injury and concluded that this resulted in a WPI of 7%. Dr Baker noted that he did not have access to the report of Dr Akkerman (which had assessed Ms Chan's WPI as being 20%); although he did not have Dr Snowden's first report, he had the second, to which he made specific reference and set out in part. Ms Chan appealed this assessment and, on 2 May 2014, the registrar of the Commission determined that Dr Baker's failure to consider Dr Akkerman's report constituted a "demonstrable failure" pursuant to s 327(3)(b) of the Act and referred the matter "to a new AMS to conduct a fresh examination of the applicant and issue a new MAC". This further examination was conducted by Dr Parmegiani on 31 July 2014 and led to the certificate, confirmation of which by the Panel is the subject of these proceedings. 5. Dr Parmegiani's assessment discussed the MAC of Dr Baker and noted that the findings of Dr Snowdon of 27 August 2013, were "similar to my findings". He did not refer to Dr Snowdon's supplementary report of 2 December. No evidence was tendered in these proceedings to suggest that Dr Parmegiani did not have before him the supplementary report of Dr Snowdon and there is every reason to think that it was, since the statements were attached to an Application to Admit Late Documents dated 22 November 2013, which was listed by Dr Parmegiani, and Dr Snowden's supplementary report was attached to another such Application dated 4 December 2013 also listed by him (but mistakenly dated 6 December). Moreover, counsel for the plaintiff accepted that all the relevant material, including the supplementary report and the underlying material that justified the reduction in the WPI, had been provided to Dr Parmegiani by the time of his assessment. Dr Parmegiani diagnosed a Chronic Major Depressive Disorder with Panic Attacks and Obsessive Thoughts and assessed Ms Chan's WPI resulting from her psychological injury at a total of 15%. Dr Parmegiani noted the two years Ms Chan had spent at Cumberland Hospital's Transport Department (upon which Dr Snowdon based his revision) concluding that her "stress tolerance was reduced" in explaining how his own assessment of Ms Chan's Employability at class 3 differed from that of Dr Baker whose assessment was class 2 (as had Dr Snowdon's). 6. On 29 August 2014 the plaintiff lodged an appeal against Dr Parmegiani's MAC, which was opposed by Ms Chan. One of the grounds of appeal was that the "assessment was made on the basis of incorrect data" and the "medical assessment certificate contains demonstrable error" pursuant to s 327(3) of the Act. In their written submissions in support of the appeal, the plaintiff submitted that Dr Parmegiani had "failed to consider the supplementary report from Dr Snowdon dated 2 December 2013". 7. On 8 December 2014, the registrar referred the appeal to the Panel on the basis that "an error is capable of being shown in relation to the assessment of whole person impairment due to a psychiatric/psychological disorder" in accordance with s 327(3)(d) of the Act. After considering the appeal on the papers, on 18 May 2015 the Panel confirmed Dr Parmegiani's certificate. In dealing with the relevant ground of appeal, the Appeal Panel noted, after referring to relevant authorities, that – "[33]. … [T]he AMS is not required to comment on every piece of evidence or medical opinion. He made his findings primarily on the history taken and his findings on examination, against the background provided by the other materials. The Panel finds no error in lack of specific reference to the supplementary report of Dr Snowden… [34]. The Panel notes that the supplementary report and lower assessment by Dr Snowden [sic] [of 2 December 2013] is at odds with the findings of the AMS, while Dr Snowden's report of 27 August 2013 is more consistent with the AMS's findings on the day, so the reference to that report is understandable." It is this finding, and the resulting decision, which forms the basis of the present proceedings. Submissions 1. The plaintiff submitted that the Panel erred in failing to find demonstrable error because their finding, in effect, that Dr Parmegiani did take into account both of Dr Snowdon's reports was "not reasonably open to the Appeal Panel, given the structure and content of the AMS's reasons for his decision". This, they argued, was an error going to jurisdiction because the reasoning upon which it was based was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [38], Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 198 ALR 59 at [34], [37]. The plaintiff bases this contention on the Panel's failure to draw the "unavoidable" inference that Dr Parmegiani failed to take into account Dr Snowdon's revised assessment. Counsel for the plaintiff, Mr Jackson, submitted that this finding is the only available inference because the report "would require some kind of discussion and explanation" (emphasis added), especially since Dr Parmegiani had referred to Dr Snowdon's first report but not to the second which revised it. Accordingly, the "only conclusion logically and rationally open to the Appeal Panel was that the AMS had failed to notice the revised assessment provided by Dr Snowdon … of his revised report … and thus had failed to consider it." Therefore, the conclusion, in effect, that Dr Parmegiani did consider Dr Snowden's revised opinion was illogical and irrational and was not based on findings or inferences of fact supported by logical grounds. 2. In reply, the first defendant submitted that the Panel's "conclusions and findings … were open on the materials to be found" in the context that Dr Parmegiani was "not specifically required to comment about each medical report or item of evidence". Rather, Ms Chan submitted that the task of the AMS is to conduct a medical examination and to apply clinical judgement and assessment in determining the degree of the worker's permanent impairment. It is clear that Dr Parmegiani had all the relevant materials before him when assessing Ms Chan's level of impairment. The Panel referred to "the background provided by the other materials" in its decision, which necessarily implies that it accepted Dr Parmegiani had both Dr Snowden's supplementary materials, an inference which was certainly open, if not inevitable. 3. In Wingfoot Australia Pty Ltd v Kocak (2013) 252 CLR 480, the High Court considered the task of a Medical Panel responsible for determining a medical dispute pursuant to s 68 of the Accident Compensation Act 1985 (Vic). The Medical Panel's task in that case is analogous to the role of the AMS under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that – "[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [cf Masters v McCubbery [1996] 1 VR 635 at 645]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. [48] The reasons that s 68(2) of the [Accident Compensation] Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself." This, the first defendant contends, supports the proposition that an AMS need not deal with in his or her reasons all the material that was made available. Rather, the task is to set out the reasoning process based on his or her own medical expertise and observations. This was the approach taken by Dr Parmegiani, thus the decision of the Appeal Panel to uphold his report for a lack of "demonstrable error" was not illogical or irrational. Discussion 1. The primary question for the Panel was whether or not Dr Parmegiani overlooked the supplementary report of Dr Snowdon. In the absence of evidence that he actually disregarded this report, the answer to this question depended on whether the fact that Dr Parmegiani did not expressly refer to the second (but did refer to the first) meant that the only rational conclusion was that he had not considered the second report. As I have already mentioned, it should be accepted (as, implicitly, the Panel did, for good reasons) that Dr Parmegiani had the material before him. Moreover, Dr Parmegiani expressly referred to the report of Dr Baker, which itself set out the conclusions of Dr Snowdon's second report and his assessment of Ms Chan's WPI at 6%. The notion that he happened to overlook that part of Dr Baker's report is scarcely likely. 2. The next leg of the plaintiff's contention is that it is inescapable that, having mentioned Dr Snowden's first report, the failure to mention the supplementary, qualifying report, demonstrates that he had not considered it. The second report was only a qualifying report in the sense that it changed the WPI assessment; it did not suggest that the earlier report was mistaken, having regard to the material on which it was based. The only reason for the inference that Dr Parmegiani did not read the underlying material, for what it was worth, is that he did not discuss it. It is clear he was under no legal obligation to discuss Dr Snowden's view of its significance. I am unpersuaded that his silence demonstrates as a matter of fact, even probably, that he did not consider it. I note that the plaintiff's grounds for appealing to the Panel did not raise the question whether Dr Parmegiani had considered the underlying material, nor is it submitted that it was necessary for him to have discussed their import. As the volume of material in this case shows, to require an AMS to discuss all matters relevant to a claimant's history would often be an enormous task. He or she is required by s 325 to state "the facts upon which … [the] certificate is based." He stated those facts were: "The clinical examination and perusal of documentation submitted by the parties". He noted that the "only discrepancies [between his assessment of WPI and that of Dr Baker, at 7%] are in the areas of social functioning and employability". He referred to the history Ms Chan gave as to her work at Cumberland Hospital with reduced stress tolerance. It was not submitted that this conclusion is inconsistent with the additional material. I note that Dr Baker, who scored Ms Chan at 2 for each of Self-Care and Personal Hygiene Concentration, Persistence and Pace (as did Dr Parmegiani) did not feel it necessary to discuss the additional material or why he differed from Dr Snowden's reduction from 2 to 1 for each of these categories. The Panel discussed the significance of the additional material in respect of Dr Parmegiani's task of assessing such of the relevant categories which had been raised by the plaintiff, concluding that Dr Parmegiani's approach "is a classic case of an AMS using his clinical expertise to arrive at the correct findings and assessment as required by the Workcover Guides". So far as the absence of a reference to the supplementary report itself was concerned, there is every reason to think that the Panel considered the question in light of their own experience as to how the task of an AMS should be undertaken. Dr Snowden's first report was referred to in respect of the diagnosis of her condition, which was not revised and, as the Panel concluded, his (first) assessment of Ms Chan's WPI was similar to his own. But this is not the decision complained of: the plaintiff contends, in effect, that the only reasonable explanation for Dr Parmegiani's failure to mention Dr Snowden's supplementary report is, as a matter of fact, that he had not considered it. There is no bright line here. It may be reasonable to suppose that, had he considered the report, he would have mentioned, at least, the fact that he differed from it, even if he did not feel the need to explain why, but that he had done so was manifest to the parties, who well knew what material was before him. I do not see that he needed to say anything more than he did on this point, namely that he had perused the material provided. It was not unreasonable, let alone "illogical and irrational and not based on findings or inferences of fact supported by logical grounds" for the Panel to conclude, in effect, that Dr Parmegiani was aware of the supplementary and reduced assessment of Dr Snowden but simply did not feel the need to mention or discuss it, a view, which, plainly enough, they shared. Furthermore, the implicit conclusion that this was a reasonable or, at least, a not unreasonable approach was to my mind open to the Panel. Since Dr Parmegiani's task was to assess Ms Chan's condition based on his own clinical assessment of the material, it is an available inference that Dr Parmegiani did not feel it necessary to discuss (as distinct from mention) Dr Snowdon's supplementary report. The Panel thought this adequately explained why Dr Parmegiani did not refer to that report. It was not illogical or irrational for the Panel to have so concluded. Conclusion 1. The plaintiff has failed to establish that it was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds" for the Appeal Panel to have concluded as it did. To the contrary, in my view its decision was plainly open on the material, indeed was entirely reasonable. It follows that the summons must be dismissed with costs. Orders 1. The summons is dismissed. 2. The plaintiff is to pay the costs of the first defendant. ********** 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. Decision last updated: 22 December 2015