Western NSW Local Health District v Roberts (NSWSC 2023)

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Background

The worker sought s66 compensation in respect of an accepted psychological injury. The matter proceeded to the Commission, where Medical Assessor Dr Hong assessed 10% WPI. The outcome of the assessment was distressing to the worker, and a few days after the MAC was issued, he informed his partner and friends that he could not cope with the stress of the past three years. He left home without his phone, keys, or insulin. Police were called and the worker was located, scheduled, and admitted to the Mental Health Acute Unit of Bloomfield Hospital.

The worker appealed the MAC relying on s327(3)(a) and (b) of the Workers Compensation Act 1987, being a deterioration in his condition, and the availability of additional relevant information. The new information included a discharge summary from the hospital, and a report of psychologist Glenda Hodge. He did not rely on the other two available grounds (demonstrable error, or incorrect criteria). The President’s delegate found there was an arguable case in respect of a deterioration.

The matter proceeded to the Medical Appeal Panel. The panel noted that Dr Hodge had reported that the worker’s condition had clearly worsened since the assessment, and his condition could no longer be considered ‘stable’ nor to have reached maximum medical improvement. The Panel found that the fresh evidence was clearly relevant, as it went to the issue of whether WPI was ascertainable, and was new as it post-dated the MAC. The Panel concluded that it was clear that the worker had not reached MMI. The MAC was therefore revoked.

The employer filed a summons in the Supreme Court seeking judicial review of the Panel’s Decision.

Supreme Court Proceedings

The employer sought judicial review on the basis that the Panel had incorrectly applied s327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998, and had asked itself the wrong question, and applied the wrong test, for the purposes of the s 327(3)(a) appeal.

The matter proceeded before Griffiths AJ on 21 April 2023. The employer argued that the Panel had to strictly determine whether or not a deterioration had occurred that resulted in an increase in the degree of permanent impairment. It also argued that the Panel should have only considered whether the new evidence supported a deterioration, and the finding that the worker’s condition had not reached MMI constituted an error of law.

The employer submitted that the Panel had ignored a relevant and material consideration – that there was no evidence of an increase in WPI. It argued that the Panel had ‘really determined that Dr Hong’s assessment was infected by demonstrable error in that Dr Hong had found that MMI had been reached contrary to the views of the Panel’.

As the delegate had only found the s327(a) point ‘arguable’, the employer believed the Panel was not at liberty to determine the s327(b) point (additional evidence). The employer believed that the Panel should merely have determined two factors:

• Was there a deterioration; and if so
• Did it result in an increase in WPI?

Decision

Griffiths AJ noted that s 325 required a MA to issue a MAC ‘as to the matters referred for assessment’. He further noted that the rights of appeal under s327(1) limited the right to ‘a “matter” that is appealable under this section’. The referral to the MA identified 4 matters to be assessed:

• Degree of permanent impairment
• Whether any proportion was due to a pre-existing condition or abnormality
• Whether the impairment is permanent
• Whether the degree of permanent impairment is fully ascertainable.

The MA had determined that all body parts/ systems had reached MMI, and ‘that the impairment is permanent and that the degree of permanent impairment is fully ascertainable’.

Griffiths AJ did not accept that the referral to the Appeal Panel was limited to the ground of appeal the delegate considered capable of being made out. The employer had, in Griffiths AJ view, placed ‘undue emphasis’ on one ground of appeal, and not looked at the second ground (additional information). Griffiths AJ found that the plaintiff ‘failed to appreciate the significance and limiting effect of the concept of a “matter” in appeals against medical assessments’.

Griffiths AJ also found that the MA’s conclusion that the worker had reached MMI ‘was a matter which was amenable to appeal under ss327(1) and (2)’. The worker’s appeal to the Panel was on the basis that his condition had deteriorated and on the basis that new information was available. The new information, namely Dr Hodge’s report, clearly went to the issue of whether he was MMI.

The ‘issues in dispute’ before the Panel were the ‘matters’ certified by Dr Hong which included whether the worker had reached MMI. This was a ‘necessary element to the issue as to whether the degree of permanent impairment was fully ascertainable’. Dr Hodge had the requisite qualifications and experience to determine whether the worker had reached MMI. Because her new information resulted in a determination that WPI could not be fully ascertained, the worker did not have to prove a deterioration as it could not be assessed at the moment.

The summons was therefore dismissed, with costs awarded.

Implications

The matter reaffirms that the President’s delegate is a gatekeeper, whose role is to determine whether at least one ground of an appeal is capable of being made out. Employers should take care to address the appeal in its entirety in any subsequent referral, as the Panel will determine the appeal in its entirety.

More pressingly, the Court’s decision confirms that where additional information goes to any of the ‘matters’ considered by a MA, such as whether a worker is MMI, or potentially the extent of a s323 deduction, the conclusions of the MA as a whole can be called into question.