Kempe v Complete Community Services Pty Ltd

[2022] NSWSC 1095

Supreme Court

New South Wales

Medium Neutral Citation:

Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095

Hearing dates:

9 August 2022

Date of orders:

18 August 2022

Decision date:

18 August 2022

Jurisdiction:

Common Law

Before:

Griffiths AJ

Decision:

(1) The summons filed on 3 February 2022 is dismissed.

(2) The plaintiff pay the first defendant’s costs, as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – review of medical assessment by Appeal Panel – judicial review of appeal panel decision – assessment of whole person impairment – whether methodology employed by Appeal Panel in rounding was incorrect – adequacy of reasons of Appeal Panel

WORKERS COMPENSATION – proceedings before Commission – medical assessment of whole person impairment – psychological injury – appeal

Legislation Cited:

Accident Compensation Act 1985 (Vic)

Interpretation Act 1987 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284

Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929

Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores [2017] NSWSC 363

Ryder v Sundance Bakehouse [2015] NSWSC 526

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 487; [2013] HCA 43

Texts Cited:

American Medical Association, Guides to the Evaluation of Permanent Impairment (5^th ed, 2001)

State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4^th ed, reissued 1 March 2021)

Category:

Principal judgment

Parties:

Peter Kempe (Plaintiff)
Complete Community Services Pty Ltd (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Member R J Perrignon, Dr Julian Parmegiani and Dr Douglas Andrews as an Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant)

Representation:

Counsel:
E G Romaniuk SC, E E Grotte (Plaintiff)
C Roberts (First defendant)

Solicitors:
LHD Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)

File Number(s):

2022/00032263

Publication restriction:

Nil

JUDGMENT

1. This judicial review proceeding involves a challenge to a decision dated 4 November 2021 of a three member Appeal Panel in relation to a medical dispute. The Appeal Panel issued a Medical Assessment Certificate which assessed the plaintiff’s whole person impairment (WPI) at 14%. This meant that the plaintiff did not reach the threshold figure of 15% permanent impairment resulting from a primary psychological injury required for the payment of compensation, as stipulated in s 65A(3) of the Workers Compensation Act 1987 (NSW) (1987 Act). Moreover, permanent impairment of at least 15% is required under s 151H(1) of the 1987 Act to succeed upon a work injury damages claim. The 14% WPI related to psychiatric and psychological disorders which were deemed to have happened on 8 March 2018. The Appeal Panel provided a written statement of reasons for its decision. It will be necessary to elaborate upon this brief history of the proceeding.

2. There are two primary issues:

1. Did the Appeal Panel fall into reviewable error by failing correctly to apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, (4^th ed, reissued 1 March 2021) (Guidelines), especially cll 1.26, 1.31 and 1.32 thereof? In particular, the plaintiff contends that the Appeal Panel acted contrary to cll 1.26 and 1.31 in rounding figures only after it had first combined the aggregate score impairment assessment under the psychiatric impairment rating scales (PIRS) with (a) the figure for the adjustment for the effects of treatment; and (b) only after it had applied the 1/10^th deduction for pre-existing impairment under cl 1.28. The plaintiff contends that, under cl 1.26, rounding must occur before moving from one degree of impairment to the next and that cl 1.31 requires that the figures be rounded up before using the Combined Values Chart as referred to in cl 1.18.

2. The second alleged error is that the Appeal Panel failed to provide any, or any adequate, reasons for its assessment of 1% WPI for the “adjustment for the effects of treatment”, as referred to in cl 1.31 ff of the Guidelines.

Summary of Background Matters

3. The plaintiff was employed as a youth carer with the first defendant, Complete Community Services Pty Ltd. In one incident during his employment the plaintiff was assaulted and subjected to threats that he would be killed. In another incident one of his charges pulled a knife out and threw it past him. The latter event in particular attributed heavily to the onset of the plaintiff’s injury.

4. It was not in dispute that the plaintiff had (a) suffered a work injury with a statutorily deemed date of 8 March 2018 and (b) suffered post-traumatic stress disorder (PTSD) and persistent depressive disorder. It was also common ground that the plaintiff had a pre-existing condition, namely anxiety.

5. I shall now elaborate upon the history of the plaintiff’s medical assessments in relation to his workers compensation claim. By a Medical Assessment Certificate dated 25 March 2020, an approved medical specialist, Dr Christopher Bench, arrived at a figure of 13% aggregate score impairment. From this figure he deducted 3% for a pre-existing impairment. Dr Bench noted that the plaintiff’s treatment had provided only “little improvement” and also noted that the plaintiff had continued to work. Dr Bench concluded that this justified a 1% adjustment for the effects of treatment. This resulted in a final WPI of 11%. Under the PIRS, Dr Bench assessed the areas of Social and Recreational Activities, Concentration Persistence and Pace, and Social Functioning as being within impairment classes 2, 2 and 3 respectively.

6. On 26 October 2020, the Appeal Panel determined the plaintiff’s appeal against Dr Bench’s decision. The Appeal Panel found that there was an error in respect of the assessment of Social and Recreational Activities and in the deduction of 3% for the pre-existing anxiety condition. The Appeal Panel rejected, however, the plaintiff’s submission that the 1/10^th deduction for pre-existing condition should only be made in respect of 1/3^rd of the assessed impairment. In its reasons for its first decision, the Appeal Panel set aside Dr Bench’s Medical Assessment Certificate and issued a fresh Medical Assessment Certificate which assessed the plaintiff’s WPI at 14% (psychological). This figure was arrived at:

1. by assessing the class impairment for Social and Recreational Activities as class 3 (not class 2 as found by Dr Bench) which provided a median class score of 3, determining the aggregate score impairment to be 15%;

2. then subtracting an amount of 2% as an adjustment for pre-existing injury (rounded up from 1.5%, being a 1/10^th deduction applied to the aggregate score impairment); and

3. adjusting upwards by 1% for the effects of treatment. This resulted in a final WPI of 14%.

7. The plaintiff challenged the Appeal Panel’s first decision by way of judicial review, claiming that its reasons for making the deduction of 1/10^th for the pre-existing anxiety condition were insufficient. This proceeding resulted in consent orders being made on 22 June 2021, whereby the Appeal Panel’s first decision and related Medical Assessment Certificate were set aside. The matter was remitted to the Appeal Panel (as previously constituted) for reconsideration according to law.

8. In directions issued by the Personal Injury Commission (PIC) on 30 July 2021, the parties to the appeal were directed to address in their written submissions the issue whether they accepted that cl 1.26 of the Guidelines does not authorise or require rounding of the percentage deduction where one is made. In response to this direction, the plaintiff submitted that any effect of treatment was “a separate and distinct component”, which was to be combined under cl 1.32 of the Guidelines with the rounded level of WPI. The plaintiff did not make any submissions to the Appeal Panel regarding the use of a figure of 1% as an adjustment for the effects of treatment, as applied by both Dr Bench and the Appeal Panel in its first decision. Nor did the plaintiff contend that the adjustment for the effects of treatment needs to have a deduction applied before that resulting figure is rounded (this contention was raised by the plaintiff for the first time in the present proceeding).

9. The reconsideration resulted in the Appeal Panel’s decision dated 4 November 2021 and related Medical Assessment Certificate, which are the subject of the present judicial review challenge.

10. It is desirable to summarise the Appeal Panel’s second statement of reasons.

Appeal Panel’s statement of reasons concerning its decision dated 4 November 2021

11. The Appeal Panel summarised the plaintiff’s submissions to it as follows:

1. The Appeal Panel was correct in its previous decision to assess WPI at 16%, being the sum of 15% for aggregate score impairment (after assessing a class 3 impairment in respect of Social and Recreational Activities) and 1% as an adjustment for the effects of treatment.

2. No deduction should be made for the pre-existing anxiety condition because that condition did not make the plaintiff’s psychiatric and psychological disorder greater than it would otherwise have been (citing Ryder v Sundance Bakehouse [2015] NSWSC 526).

3. Even if the pre-existing condition did make the impairment greater, the deduction should be no greater than 1/3^rd of 1/10^th because the pre-existing anxiety condition could only render the impairment greater in respect of 1/3^rd of the permanent impairment. This was because Dr Bench had diagnosed three existing conditions (namely PTSD, Persistent Depressive Disorder and Alcohol Use Disorder). The pre-existing anxiety condition was said to be material only to the first of those conditions.

12. The Appeal Panel noted at [10] of its statement of reasons that the parties were agreed that if a deduction was made for the pre-existing anxiety condition, the amount of the deduction should not be rounded before it is made.

13. The Appeal Panel explained why it maintained the position previously reached in its first decision dated 26 October 2020, namely that there was a class 3 impairment in respect of Social and Recreational Activities but that there was no error in Dr Bench’s assessment of Concentration, Persistence and Pace, and/or Social Functioning.

14. The Appeal Panel then explained why it rejected the plaintiff’s argument that the deduction for the pre-existing condition should not exceed 1/3^rd of 1/10^th. The Appeal Panel explained why it found that Dr Bench had erred in making a deduction because, contrary to Ryder, he had made no finding that, as a result of the plaintiff’s pre-existing anxiety condition, his impairment was greater than it would otherwise have been.

15. The Appeal Panel then explained why it concluded that there should be a deduction for the pre-existing anxiety condition.

16. The Appeal Panel then explained why it concluded that, because the amount of the deduction was difficult to quantify, it should apply a deduction of 1/10^th (consistently with s 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act) and cll 1.28 and 11.10 of the Guidelines).

17. It is desirable to set out the Appeal Panel’s conclusion (emphasis added):

Conclusion

33.    For the reasons given above, the appeal is allowed in part. The Medical Assessment Certificate of Dr Bench is set aside and replaced by the attached Medical Assessment Certificate. As the parties agree that the Guidelines do not permit the amount of the deduction itself to be rounded, we have not done so. Only the final percentage impairment, after making the deduction, has been rounded.

18. The Appeal Panel published a fresh Medical Assessment Certificate, which is annexed to this judgment along with the final part of the accompanying PIRS Rating Form (Annexure A).

19. In the present proceeding, the President of the PIC filed a submitting appearance, as did the three individuals who constituted the Appeal Panel.

20. I shall now briefly address the submissions made by the plaintiff and the first defendant in the present proceeding.

Plaintiff’s submissions summarised

21. The plaintiff contended that the Appeal Panel erred in rounding only after it applied the 1/10^th deduction for the pre-existing anxiety condition (ie deducting 1.6% from the final WPI of 16% to produce a figure of 14.4%, which was then rounded down to 14%). The plaintiff contended that the Guidelines should have been applied as follows:

1. Subtract the 1/10^th deduction from the 15% aggregate score impairment (ie 15% less 1.5% = 13.5% and then round 13.5% to 14%).

2. Next, apply the 1/10^th deduction to the 1% assessed for adjustment for the effects of treatment (1% less 0.1% = 0.9% and then 0.9% is rounded to 1%).

3. Add the rounded figures of 14% and 1% to give a final figure of 15% for the plaintiff’s WPI.

22. The plaintiff submitted that cl 1.26 of the Guidelines requires rounding to occur with respect to each component of a calculation. In particular, this was said to arise from that part of cl 1.26 which states that:

All such values must be rounded to the nearest whole number before moving from one degree of impairment to the next (eg from finger impairment to hand impairment, or from hand impairment to upper extremity impairment) or from a regional impairment to a WPI. Figures should also be rounded before using the combination tables.

23. The plaintiff added that, in his case, the component “aggregate score impairment” assessed at 15% was different from the component assessed at 1% as an adjustment for the effects of treatment. He submitted that cl 1.26 of the Guidelines therefore required rounding to occur “before moving from one degree of impairment to the next”.

24. The plaintiff then submitted that cll 1.31, 1.32 and 1.33 of the Guidelines (which all deal with adjustment for the effects of treatment) identified that subject as a separate component in the assessment of WPI and also attracted the approach required in cl 1.26.

25. In oral address, the plaintiff contended that his construction should also be preferred having regard to cl 1.9 of the Guidelines, which states:

The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant’s permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. …

26. The plaintiff’s submissions in support of ground 2 and the alleged failure of the Appeal Panel to provide adequate reasons in respect of its assessment of 1% for the adjustment for the effects of treatment were somewhat unclear. In particular, the plaintiff failed to establish a clear connection between a deduction for a pre-existing condition and an adjustment upwards for the effects of treatment.

27. The plaintiff complained that the Appeal Panel did not explain why it preferred a figure of 1% adjustment for the effects of treatment, notwithstanding that Dr Bench had used the same figure.

The first defendant’s submissions

28. To avoid adding unduly to the length of these reasons, I will not separately summarise the first defendant’s submissions. They are partly reflected in my reasons below for concluding that the Appeal Panel did not apply an erroneous methodology.

Consideration and Determination

(a) Relevant provisions of the Act and the Guidelines

29. The active parties were agreed that the first ground of review turns on the proper construction of the Guidelines. Significantly, it should be noted that neither of the active parties contended that it was incorrect of the Appeal Panel to apply a 1/10^th deduction at all to, or in relation to, the adjustment for the effects of treatment. Rather, their dispute focuses upon the stage at which that deduction should apply.

30. There was also broad agreement between the parties concerning the principles to apply in construing the Guidelines. Although the Guidelines are neither a statute nor subordinate legislation, they have been held to have the effect of subordinate legislation: see Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] per Bell P and Payne JA. They are issued under s 376 of the 1998 Act and, by dint of the operation of ss 3(1) and 5(2) of the Interpretation Act 1987 (NSW), they are also an “instrument” to which that Act applies subject to a contrary intention. Generally speaking, therefore, the ordinary principles of legislative construction apply to the Guidelines (see Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores [2017] NSWSC 363 at [61]–[63] per N Adams J). Thus considerations of text, context and purpose are important (see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] per Kiefel CJ, Nettle and Gordon JJ, [37]–[40] per Gageler J). Appropriate allowance needs to be made for the form of the Guidelines, which is not the form of primary or secondary legislation.

31. The active parties indicated that they were unable to find any previous Court authority on the construction and application of provisions in the Guidelines concerning “rounding” as arise for determination in this proceeding.

32. Pursuant to s 322(1) of the 1998 Act, the Guidelines have to be applied in assessing the degree of a person’s permanent impairment. In that sense, it may be more appropriate to describe the Guidelines as instructions, given that they are binding on decision-makers.

33. It is also appropriate to note at the outset the effect of s 323 of the 1998 Act. It addresses the subject of making a deduction for a previous injury or pre-existing condition or abnormality. Under s 323(1), in assessing the degree of permanent impairment resulting from an injury, a deduction is to be made for any proportion of the impairment that is due to any previous injury or pre-existing condition or abnormality. Moreover, under s 323(2), if the extent of a deduction for a pre-existing condition will be difficult or costly to determine, it is to be assumed “for the purpose of avoiding disputation” that the deduction is 10% of the impairment unless this assumption is at odds with the available evidence (see also cll 1.28 and 11.10 of the Guidelines, which are to similar effect).

34. Before identifying the key relevant provisions of the Guidelines, it is relevant to note s 327 of the 1998 Act, which creates a right for a party to a medical dispute to appeal against the medical assessment as provided for in that section. Section 328 then provides that an appeal against a medical assessment is to be heard by an Appeal Panel constituted by three persons chosen by the President, two of whom are medical assessors and the other being a member of the PIC who is assigned to the Workers Compensation Division of the PIC. Such an appeal is 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 (see s 328(2)).

35. I will now identify and summarise some key relevant provisions of the Guidelines.

36. The degree of permanent impairment that results from an injury or condition must be determined using the tables, graphs and methodology set out in the Guidelines and the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5^th ed, 2001) (AMA5), where appropriate (see cl 1.8 of the Guidelines). It is made clear, however, in cl 1.11 of the Guidelines that chapter 14 of AMA5, which relates to mental and behavioural disorders, has been omitted from the Guidelines. Instead there is a substitute chapter 11 in the Guidelines (written by a group of Australian psychiatrists) which describes the assessment of psychiatric and psychological disorders. That is not to say that other provisions in the Guidelines outside chapter 11 are irrelevant to the assessment of psychiatric and psychological disorders.

29. The topic of multiple impairments is addressed in cll 1.17–1.20 of the Guidelines. Relevantly, cll 1.18 and 1.19 state:

1.18   The Combined Values Chart in AMA5 (pp 604–06) is used to derive a percentage of whole person impairment (WPI) that arises from multiple impairments. An explanation of the chart’s use is found on pp 9–10 of AMA5. When combining more than two impairments, the assessor should commence with the highest impairment and combine with the next highest and so on.

1.19   The exception to this rule is in the case of psychiatric or psychological injuries. Where applicable, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from any physical injuries arising out of the same incident. The results of the two assessments cannot be combined.

38. The subject of psychiatric and psychological injuries is dealt with in cll 1.21 and 1.22 of the Guidelines. They state as follows:

Psychiatric and psychological injuries

1.21    Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.

1.22    A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.

39. The topic of “rounding” is addressed in cl 1.26 of the Guidelines (emphasis added):

Occasionally the methods of the Guidelines will result in an impairment value which is not a whole number (eg an assessment of peripheral nerve impairment in the upper extremity). All such values must be rounded to the nearest whole number before moving from one degree of impairment to the next (eg from finger impairment to hand impairment, or from hand impairment to upper extremity impairment) or from a regional impairment to a WPI. Figures should also be rounded before using the combination tables. This will ensure that the final WPI will always be a whole number. The usual mathematical convention is followed where rounding occurs – values less than 0.5 are rounded down to the nearest whole number and values of 0.5 and above are rounded up to the next whole number. The method of calculating levels of binaural hearing loss is shown in Chapter 9, paragraph 9.15, in the Guidelines.

40. The topic of deductions for pre-existing condition or injuries is addressed in cll 1.27 and 1.28 of the Guidelines:

1.27   The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.

1.28   In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.

41. The topic of adjustment for the effects of treatment is addressed in cll 1.31–1.33 of the Guidelines. The first two of those clauses should be set out because of the significance attached to them by the plaintiff in this proceeding:

1.31    In circumstances where the treatment of a condition leads to a further, secondary impairment, other than a secondary psychological impairment, the assessor should use the appropriate parts of the Guidelines to evaluate the effects of treatment, and use the Combined Values Chart (AMA5, pp 604–06) to arrive at a final percentage of WPI.

1.32    Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.

42. As noted above, chapter 11 of the Guidelines deals specifically with psychiatric and psychological disorders and replaces chapter 14 of the AMA5. It is explicitly stated in cl 11.1 that chapter 11 “lays out the method for assessing psychiatric impairment” (emphasis added).

43. The subject of pre-existing impairment is addressed at cl 11.10 of the Guidelines (emphasis added):

To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.

44. It is important to note at this juncture the distinction drawn in cl 11.10 between the phrase “percentage impairment” and “WPI%”. The former phrase applies to the figure arrived at after using the conversion table in cl 11.20 in relation to the aggregate score and median class score (see further below). The reference to “WPI%” refers to the percentage of whole person impairment (this is the concept which is also referred to at the end of cl 1.31, which is set out at [41] above).

45. The PIRS is explained at cl 11.11 ff of the Guidelines. This involves evaluating behavioural consequences of psychiatric disorder by reference to six different areas of functional impairment. Impairment in each of these six areas is rated using class descriptors which range from 1 to 5 (which span from no impairment to extreme impairment). As noted above, the only area of functional impairment which is relevant here is that relating to Social and Recreational Activities. The Appeal Panel raised Dr Bench’s assessment of that area from class 2 (mild impairment) to class 3 (moderate impairment).

46. It is made clear in cl 11.13 of the Guidelines that psychiatric impairment using the PIRS is a two-step procedure which requires:

1. determining the median class score; and

2. then calculating the aggregate score.

47. The median class score is calculated by averaging the two middle scores in relation to the six areas. The aggregate score is used to determine an exact percentage of impairment within a particular median class range with the six individual class scores being added to produce the aggregate score.

48. Clauses 11.18 to 11.20 of the Guidelines explain how a percentage impairment is arrived at by using a conversion table which is set out at Table 11.7. It is desirable to set out cll 11.18 to 11.20:

11.18    The aggregate score is converted to a percentage score using the conversion Table 11.7, below.

11.19    The conversion table was developed to calculate the percentage impairment based on the aggregate and median scores.

11.20    The scores within the conversion table are spread in such a way to ensure that the final percentage rating is consistent with the measurement of permanent impairment percentages for other body systems.

(b) Ground 1

49. For the following reasons, I am not persuaded that the Appeal Panel adopted an incorrect construction of the Guidelines. First, the text of cll 1.32 and 11.10 of the Guidelines is consistent with the Appeal Panel’s approach. The phrases “impairment percentage” and “percentage impairment” in cll 1.32 and 11.10 respectively have a synonymous meaning. That meaning has a different meaning from the phrase “final percentage of WPI” as it appears in cl 1.31. Thus, cl 1.31 requires that any adjustment upwards for the effects of treatment should be combined with the aggregate score impairment using the Combined Values Chart at pp 604–06 of AMA5 to identify the claimant’s current level of WPI. Then, consistently with cl 11.10, from this figure is deducted an amount representing the claimant’s pre-existing WPI “to obtain the percentage of permanent impairment directly attributable to the work-related injury”.

50. Secondly, the Appeal Panel’s construction is consistent with cl 1.26 of the Guidelines, which addresses the requirement that an assessment result in “an impairment value”. An impairment value is reflected in the figure which is ultimately arrived at for WPI. Clause 1.26 plainly requires rounding to occur in order to produce a whole number for a person’s WPI. On its face, however, cl 1.26 does not explicitly state when rounding is to occur in a case where there is a single impairment but a deduction needs to be made for a pre-existing condition and/or an adjustment needs to be made for the effects of treatment.

51. The examples of rounding set out in cl 1.26 relate to cases which are different from the circumstances here. The first example in cl 1.26 regarding rounding addresses cases involving multiple impairments (which is not the case here). It provides that the “impairment value” for one type of impairment (eg finger impairment) should be rounded to the nearest whole number before moving to another degree of impairment (such as hand impairment). Another example for rounding relates to moving from a regional impairment to a WPI. Again, that is not the case here.

52. The text of cl 1.26 of the Guidelines does not support the plaintiff’s claim (raised for the first time in the present proceeding) that, in the circumstances of this case, rounding should apply directly to that stage of the assessment which relates to the making of an adjustment for the effects of treatment. Rather, in the case of a single impairment, as is the case here, it was correct of the Appeal Panel to first arrive at a percentage figure for WPI of 16% (which was based on an aggregate score impairment of 15%, to which was added the figure of 1% for the effects of treatment) before deducting an amount of 1.6% for pre-existing impairment (being 1/10^th of 16%) to produce a figure of 14.4% and then to round that figure to the whole figure of 14%, consistently with the language in the first two sentences of cl 1.26.

53. Thirdly, I do not accept the plaintiff’s submission that its construction is supported by cll 1.31 and 1.32 (which are set out at [41] above). On the contrary, as explained above, I consider that these provisions support the approach adopted and applied by the Appeal Panel.

54. Fourthly, under the plaintiff’s construction (see [21(2)] above), rounding should be applied directly to the adjustment for the effects of treatment well prior to arriving at a final WIP, rather than immediately beforehand, which was the Appeal Panel’s approach. As the first defendant pointed out, however, applying rounding earlier in the process of assessment in a case such as the present produces an anomaly which can hardly have been intended. That is because, on the plaintiff’s approach, a meaningful deduction would never be made in respect of an adjustment for the effects of treatment in a case such as the present where there is a need to make both a deduction for a pre-existing impairment and an adjustment upwards for the effects of treatment.

55. I shall now explain why that is so.

56. By operation of cl 1.32 of the Guidelines, an adjustment for the effects of treatment can only be made by increasing the percentage of WPI by 1%, 2% or 3%. As noted above, s 323 of the 1998 Act provides that, if the extent of the deduction for pre-existing impairment will be expensive or costly to determine, a deduction of 1/10^th of the impairment should be applied unless this assumption is inconsistent with the available evidence. The plaintiff’s construction (see [21(2)] above) involves a 1/10^th deduction being made to the 1% figure for adjustment for the effects of treatment after a 1/10^th deduction has been made from the aggregate score impairment. This approach produces no change to the percentage figure of either 1%, 2% or 3% for effects of treatment which otherwise would apply, thus depriving cl 1.32 of the Guidelines of any practical operation in a case involving an adjustment upwards for the effects of treatment. To elaborate: 1% less 10% is 0.9%, which would be rounded up to 1%; 2% less 10% would be 1.8%, which would be rounded up to 2%; and 3% less 10% would be 2.7%, which would be rounded up to 3%.

57. It is difficult to understand why the draftsperson would have intended rounding to occur immediately after a 1/10^th deduction is made to any of the three percentage figures under cl 1.28 for pre-existing condition or injury, with the consequence that each of those figures always remains the same. But that is the consequence of the plaintiff’s construction.

58. Finally, I reject the plaintiff’s contention that cl 1.9 of the Guidelines (see at [25] above) supports its construction. Properly construed, that provision requires assessors to use a method which yields the highest degree of permanent impairment where the Guidelines specify more than one method in assessing the degree of permanent impairment which results from an injury. It has no application where the Guidelines provide only one method for making that assessment, which is the case here under chapter 11 of the Guidelines (see at [42] above). It is an inappropriate use of the provision to say that it should be used to create a second method of assessment which is not otherwise available on a proper construction of the Guidelines. That, however, is what the plaintiff urges here.

(c) Ground 2

59. It is well-settled that the Appeal Panel has an implied statutory obligation to give reasons: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [26] per Handley JA and at [117] per Basten JA. The standard required of such a statement of reasons is reflected in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 487; [2013] HCA 43. The latter case concerns reasons given by a medical panel under the Accident Compensation Act 1985 (Vic), where there was an explicit statutory obligation imposed upon a medical panel to “give a certificate as to its opinion and a written statement of reasons for that opinion”. The High Court stated:

54    The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion to always meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.

55    The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

60. I respectfully agree with the view recently expressed by Basten AJ in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [45] that it is appropriate to adopt a similar approach in identifying the standard required under the implied obligation in the statutory scheme in this State. In addition, I respectfully agree with, and emphasise, his Honour’s statement at [52] that the adequacy of the Appeal Panel’s reasons “must be viewed in the particular context of the case”. That necessarily involves attention being given to the relevant history of the proceeding (which in this case includes a previous proceeding before the Appeal Panel and a successful judicial review challenge), as well as the content of the submissions made by the parties in identifying the relevant issues for determination by the Appeal Panel.

61. As noted above, it is common ground that the Appeal Panel did not provide reasons for its use of a figure of 1% for the effects of treatment. That needs to be assessed, however, in the circumstances of the case, which include the concession properly made by Mr Romaniuk SC (who, together with Ms Grotte, appeared for the plaintiff) that no specific challenge was made by the plaintiff to the 1% adjustment in the Appeal Panel proceeding.

62. In my view, the standard must take into account the way in which the case was presented to the Appeal Panel. Unsurprisingly, the Appeal Panel’s reasons are directed to the basis upon which the medical dispute was remitted to it after consent orders were made in the previous judicial review proceedings. Those earlier proceedings did not raise any issue about Dr Bench’s use of the figure of 1% in adjusting for the effects of treatment. Nor, indeed, was this issue raised in the first proceeding before the Appeal Panel. It is unsurprising that, in those circumstances, no reasons were provided by the Appeal Panel in relation to its second decision for adopting the figure used by Dr Bench.

63. I reject ground 2.

Conclusion

64. For these reasons, the summons will be dismissed, with costs.

65. Although I have upheld the approach adopted by the Appeal Panel, consideration should be given to amending the Guidelines so as to reflect these reasons for judgment. It is desirable that, as a standalone document, the Guidelines provide clear instructions to decision-makers and other interested parties as to the correct methodology to apply.

66. In the same vein, consideration should be given to whether there is a need to amend the Guidelines so as to clarify what is meant by the reference in cl 1.26 to “combination tables”. It is unclear whether that reference is the same as the reference in cl 1.18 to the “Combined Values Chart” in AMA5 (pp 604–06).

64. The formal orders of the Court are:

1. The summons filed on 3 February 2022 is dismissed.

2. The plaintiff pay the first defendant’s costs, as agreed or assessed.

Annexure A (119876, pdf)

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Decision last updated: 18 August 2022