When can fresh evidence be used in an appeal against a MAC?

CSR Limited v Ewins [2020] NSWSC 511

The Supreme Court of NSW recently exercised their administrative jurisdiction to approve the reasoning applied by the Medical Appeal Panel in drawing conclusions as to the circumstances in which fresh evidence can be adduced in support of an Appeal against the decision of an AMS.

This decision is instructive in respect of the application of Sections 327(3)(b) and Section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

Material facts

The Worker sustained a psychological injury in the course of her employment. She was referred to Dr Mason, Approved Medical Specialist (AMS), for assessment. On 24 April 2019 Dr Mason issued a Medical Assessment Certificate (MAC) in which he assessed 17% WPI as a result of a Major Depressive Disorder.

In his assessment Dr Mason rated the Worker with Class 3 impairment in the category of ‘social and recreational activities’, based on her history that she no longer entertains friends at home or visits other families and no longer attends church.

On 14 May 2019 the Employer requested a period of surveillance on the Worker. On 16 May 2019 the Employer lodged an Application to Appeal against the MAC on the basis of incorrect criteria and demonstrable error pursuant to 327 of the 1998 Act. The Employer sought an oral hearing before the Appeal Panel due to the volume of material admitted and the number of errors relied upon.

A surveillance report dated 30 May 2019 showed that the Worker had been observed to attend church twice and to spend some time at a residence near to her home after church.

The Employer sought to have the surveillance report admitted to the Appeal proceedings on the basis of additional relevant evidence pursuant to Section 327(b) of the 1998 Act and in support of their contention that the complaints made to the AMS by the Worker had been false.

In opposing the Appeal, the Worker’s solicitors submitted that the Employer’s attempt to rely upon new evidence was misguided; and the surveillance material was not before the AMS and came into existence after the MAC was issued and consequently had no probative value to the issue before the Registrar, that is, whether the AMS was in error with respect to his clinical judgment on the day he saw the Worker.

The Appeal Panel Decision

In the reasons published on 27 August 2019, the Appeal Panel rejected the contention that a right to adduce new evidence arises by recitation of a ground under Section 327(3)(b) of the 1998 Act. The Panel referred to Section 328(3) of the 1998 Act, which it said prevented the Panel from receiving fresh evidence “unless the evidence was not available to the appellant before the medical assessment, or could not reasonably have been obtained by the appellant before the medical assessment”.

The Panel’s decision came down to the fact that there was nothing to prevent the Employer from obtaining a surveillance report prior to the AMS assessment. It is further noted that “if a worker is prevented from challenging the history recorded by the AMS (as in Petrovic v BC Serv No 14 Pty Ltd & Ors [2007] NSWSC 1156), there seems to be no reason that the employer should be permitted to continue digging for evidence to undermine the recorded history in the MAC, absent special circumstances. This is more so, when the appellant has, in this case, been faced with a claim for 17% WPI since at least 20 March 2018.” The Panel also denied the Employer’s request for an oral hearing and determined that there was sufficient evidence to decide the matter on the papers, in accordance with the Registrar’s Guidelines. The Appeal Panel found there had otherwise been no appealable error in the AMS assessment.

The Supreme Court Decision

The Employer asserted that the Panel erred in determining that the surveillance report could have been obtained prior to the medical assessment; that the Panel erred in rejecting the additional evidence; and that the Panel denied the Employer procedural fairness in determining the matter on a basis not put by or to the parties.

The Supreme Court found no error in the Panel’s reasoning or conclusions. Adamson J cited with approval the Panel’s recognition that the Employer failed to provide any explanation as to why the surveillance evidence could not have been obtained prior to the medical assessment. Adamson J also rejected the Employer’s submission that the Panel’s refusal to allow an oral hearing constituted jurisdictional error. The Appeal was dismissed.

Implications

A party who seeks to adduce fresh evidence in support of an Appeal against a MAC will need to establish that evidence was not available, or could not reasonably have been obtained, before the medical assessment. The Appeal Panel will resist attempts to undermine the recorded history in the MAC by enabling parties to adduce fresh evidence which they ‘dug up’ in support of an Appeal.

If you have any questions about a particular workers compensation matter, please contact our team by phoning 02 4929 9333 (Newcastle) or 02 8297 5900 (Sydney).