Lancaster v Foxtel Management Pty Ltd

[2022] NSWSC 929

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929

Hearing dates:

7 July 2022

Date of orders:

12 July 2022

Decision date:

12 July 2022

Jurisdiction:

Common Law

Before:

Basten AJ

Decision:

(1)   Dismiss the amended summons filed on 8 February 2022 seeking judicial review of a decision of an appeal panel of the Personal Injury Commission of 21 September 2021.

(2)   Order that the plaintiff pay the defendant’s costs in this Court.

Catchwords:

ADMINISTRATIVE LAW – review of medical assessment by appeal panel – judicial review of appeal panel decision – adequacy of reasons of appeal panel – no requirement to address possible alternative findings – whether error of law in finding no “demonstrable error” in medical assessment rating severity of impairments

WORKERS COMPENSATION – proceedings before Commission – medical assessment of psychological injury – appeal – appeal panel appointed under Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 328 – nature of grounds limited by statute – appeal by way of review – appeal limited to grounds stated by appellant

WORKERS COMPENSATION – proceedings before Commission – medical assessment of psychological injury – appeal – additional evidence presented – whether obligation to re-examine worker – additional evidence of worker’s self-report accepted by appeal panel – whether additional evidence supported claim of “demonstrable error”

Legislation Cited:

Accident Compensation Act 1985 (Vic), s 68

Motor Accidents Compensation Act 1999 (NSW), s 63

Supreme Court Act 1970 (NSW), s 75A

Workers Compensation Act 1987 (NSW), s 65A

Workers Compensation Legislation Amendment Act 2010 (NSW), Sch 12 [12], [14]

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 319, 324, 325, 326, 327, 328

Cases Cited:

Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328

Ballas v Department of Education (State of New South Wales) [2020] NSWCA 86

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

Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053

Ferguson v State of New South Wales [2017] NSWSC 887

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Lancaster v Foxtel Management Pty Ltd [2021] NSWSC 745

Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112

NSW Police Force v Wark [2012] NSWWCCMA 36

Glenn William Parker v Select Civil Pty Ltd

[2018] NSWSC 140

Petrovic v BC Serv No 14 Pty Ltd [2007] NSWSC 1156

Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88

Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56

Ross v Zurich Workers Compensation Insurance [2002] NSWCCPD 7

Siddik v WorkCover Authority of New South Wales

[2008] NSWCA 116

Sleiman v Gadalla Pty Ltd [2021] NSWCA 236

Versace v Australia’s Best Tyres & Auto Pty Ltd

[2016] NSWSC 1540

Wingfoot Australia Partners Pty Ltd v Kocak

(2013) 252 CLR 480; [2013] HCA 43

Category:

Principal judgment

Parties:

Mark Lancaster (Plaintiff)
Foxtel Management Pty Ltd (First Defendant)
President of the Personal Injury Commission (Second Defendant)

Representation:

Counsel:
Mr E Romaniuk SC / Ms L Goodman (Plaintiff)
Ms C Roberts (First Defendant)

Solicitors:
Kemp & Co Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitors Office (Second Defendant)

File Number(s):

2021/354489

Publication restriction:

Nil

 Decision under review 

Court or tribunal:

New South Wales Personal Injury Commission

Jurisdiction:

Appeal Panel

Citation:

[2021] NSWPICMP 176

Date of Decision:

21 September 2021

Before:

Member Elizabeth Beilby
Dr Julian Parmegiani
Professor Nicholas Glozier

Judgment

1. BASTEN AJ: The plaintiff, Mark Lancaster, seeks relief by way of judicial review of a decision of a medical appeal panel appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”). The defendant, Foxtel Management Pty Ltd, was the plaintiff’s employer for a period of months from February to July 2017.

2. After leaving the employment of the defendant, the plaintiff made a claim for psychological injury resulting from “bullying and harassment” in the workplace. There was no dispute that he suffered an injury: the dispute is as to the extent of the injury. On 21 March 2019, the plaintiff made a claim for lump sum compensation under the Workers Compensation Act 1987 (NSW). Pursuant to s 65A(3) of that Act, no compensation is payable in respect of permanent impairment resulting from a psychological injury unless the degree of impairment is at least 15%. However, on 12 June 2020, an approved medical specialist, Dr Michael Hong, assessed the plaintiff’s whole person impairment at 9%. A medical assessment certificate was issued recording that determination.

3. The plaintiff sought a referral by the Registrar of the Workers Compensation Commission [1] of his proposed appeal to a medical appeal panel. The matter was duly referred by the registrar, who was satisfied that at least one of the grounds of appeal specified in s 327(3) of the Workplace Injury Act had been made out. Before the Appeal Panel, the plaintiff provided a supplementary statement (by way of further or additional evidence) and sought to be re-examined by one or more members of the Panel.

   1. Now known as the Principal Registrar of the Personal Injury Commission.

4. Relevantly for present purposes, that Panel (“first Appeal Panel”) did two things. First, it declined to re-examine the plaintiff and, secondly, it confirmed Dr Hong’s certificate.

5. The plaintiff commenced proceedings in this Court to set aside the decision of the first Appeal Panel on a number of grounds, one of which, belatedly added, was that the refusal to re-examine the plaintiff had not been accompanied by any explanation in the reasons provided by the Panel. The plaintiff contended that either the first Appeal Panel had failed to consider his request or, if it had considered it, had failed to give reasons for refusing it.

6. In its reasons, the first Appeal Panel stated that it “determined that it was not necessary for the worker to undergo a further medical examination”. One might have inferred from that language that, conscious of its powers to conduct an examination, the Panel had considered and refused the plaintiff’s request. Nevertheless, the defendant accepted, according to Adamson J (the judge hearing the review application), that the Panel “did not indicate in its reasons that it had actually considered the claimant’s request that he be re-examined or the basis on which it concluded that no examination was warranted”. [2] On 24 June 2021, Adamson J accepted that the proposed consent orders were appropriate and set aside the determination of the first Appeal Panel. [3] It may be noted that in delivering judgment, Adamson J stated that “the cursory fashion with which the Appeal Panel dealt with the claimant’s application that he be examined amounted to a denial of procedural fairness”. [4]

   2. See Lancaster v Foxtel Management Pty Ltd [2021] NSWSC 745 at [19] (“Lancaster”).

   3. Lancaster at [23].

   4. Lancaster at [21].

7. Failure to consider an integral part of the plaintiff’s application may well have constituted procedural unfairness; a failure to provide adequate reasons for refusing the application may constitute an error of law appearing on the face of the record, but might not, of itself, constitute procedural unfairness and hence jurisdictional error. [5] Nothing turns on that for the present case.

   5. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 at [44]-[46] (Gleeson CJ, Gummow and Heydon JJ), [55] (McHugh J).

8. The matter was then remitted to the Personal Injury Commission and a second Appeal Panel established. On 21 December 2021, it handed down its decision, namely that the medical assessment certificate issued on 22 June 2020 be confirmed, together with its reasons. [6]

   6. Lancaster v Foxtel Management Pty Ltd [2021] NSWPICMP 176 (“Appeal Panel decision”).

9. On 14 December 2021, the plaintiff filed a summons seeking judicial review of the decision of the second Appeal Panel. An amended summons was filed on 8 February 2022. The seven grounds set out in par 7 of the amended summons in substance raised two broad issues. The first was whether the Appeal Panel properly exercised its powers according to law; the second was whether it committed some form of legal error in its assessment of the criteria for assessing psychological impairment.

Grounds of review

10. The grounds of review set out in par 7 of the amended summons were discursive. They were helpfully encapsulated by the defendant’s counsel in written submissions which may be adopted for convenience, namely whether the Appeal Panel –

1. incorrectly approached the question of whether it would re-examine the plaintiff;

2. gave inadequate reasons for not re-examining the plaintiff;

3. failed to consider afresh the question of the plaintiff’s impairment, including by failing to re-examine him;

4. misunderstood and misapplied the decision in Petrovic v BC Serv No 14 Pty Ltd;

5. erred in failing to find error in the assessment of three categories of impairment;

6. erred in its assessment of the three impairment categories; and

7. (g)   made a factual error in concluding that the plaintiff did not require a support person to leave the house.

11. The plaintiff’s written submissions did not follow this schema. As will be noted below, some grounds were not separately addressed in submissions, although none was abandoned.

Powers of Appeal Panel

The statutory scheme

12. The plaintiff’s challenge to the second Appeal Panel decision with respect to its understanding of its powers involved several limbs. As pithily identified by counsel for the first defendant, in her written submissions, the plaintiff asserted error by the Panel, “first, in the characterisation of its task after receiving new evidence, and secondly, in then considering the question of clinical examination”. [7] It is convenient to deal with those issues in turn, but they are, nevertheless, interrelated. Both turn on the proper construction of s 327 and s 328 of the Workplace Injury Act, which currently read:

    7. First defendant’s written submissions, 8 June 2022, par 16.

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.

…

(3)   The grounds for appeal under this section are any of the following grounds—

(a)   deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b)   availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c)   the assessment was made on the basis of incorrect criteria,

(d)   the medical assessment certificate contains a demonstrable error.

(4)   An appeal is to be made by application to the President. [8] The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

8. At the time of the referral, references in s 327 to the President of the Personal Injury Commission were to the registrar of the former Commission. The substantive provisions were otherwise identical.

…

328    Procedure on appeal

(1)    An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows—

(a)    2 medical assessors,

(b)   1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.

(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.

(2A)    To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members.

(3)    Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.

…

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

…

13. There is an awkward relationship between s 327(3)(b), providing for a ground based on the “availability of additional relevant information”, and s 328(3) permitting the deployment before an appeal panel of what may be succinctly described as “fresh evidence”, in the sense that term is used in relation to judicial proceedings. Reading the provisions as complementary, s 328(3) allows the deployment of “additional relevant information” in support of grounds (a) (deterioration) or, more generally, (b). If, as here, ground (a) is not engaged, the inquiry under ground (b) must be a simple question, “Does the additional information lead the panel to a different conclusion from that reached by the medical specialist?” In other words, the medical specialist was wrong, but the reason may not fall within grounds (c) or (d). In a sense this invokes an appeal function separate from a demonstration of error on the part of the medical specialist. This has some bearing on the plaintiff’s first ground of appeal, although not relied on in these terms.

14. There are two further issues, not explored by the parties. First, s 328(3) is in the form of a prohibition on adducing new material, subject to an exception for fresh evidence. There was no consideration as to how this provision related to the power to require an appellant to be clinically re-examined by a medical specialist on the appeal panel, pursuant to s 324(1)(c). [9] The issue was potentially live, because a psychological assessment is likely to involve another form of the worker describing his post-accident social functioning, as he did in his written statement. This, as will be noted below, might at least suggest limitations on the value of a further clinical examination. Secondly, there was an unexplored temporal element. Putting to one side a case involving alleged deterioration, did ground (b) assume additional information as to the worker’s condition at the time of the first assessment? Arguably, that would be so: the worker would not be expected to present evidence of improvement, but if (b) were restricted to post-assessment deterioration, it would render ground (a) redundant. On that view ground (b) should, perhaps, be read as limited to conditions existing at the time of the first assessment, but not then diagnosed. Because this issue was not the subject of submissions, it will not be pursued further.

    9. The power to require a clinical examination is available at the first medical assessment and on appeal: Workplace Injury Act, s 324(3).

Functions of Appeal Panel: ground 7(a)

15. The term “medical assessment” in s 327(1) is defined in s 4(1) to mean an “assessment of a medical dispute by a medical assessor under Pt 7 of Ch 7”. Section 319 defines a “medical dispute” to include a dispute as to “the degree of permanent impairment of the worker as a result of an injury”. There is no issue that the medical assessment undertaken by Dr Hong satisfied the requirements of s 327(2), as relating to a matter conclusively presumed to be correct under s 326(1)(a).

16. With respect to s 327(3), the plaintiff relied upon three grounds, being pars (b), (c) and (d), but not (a). In other words, he did not assert any deterioration in his condition resulting in an increase in the degree of his permanent impairment. It was common ground that the registrar’s delegate was satisfied as to at least one of the grounds being made out and that the Appeal Panel was not restricted to any particular ground identified by the registrar. However, it was restricted to the grounds relied on by the plaintiff, in accordance with s 328(2).

17. There is a degree of overlap between pars (a) and (b) of subs (3), described by Leeming JA in Sleiman v Gadalla Pty Ltd as the “remedial” grounds. [10] A deterioration of a worker’s condition must generally be demonstrated by relevant information that was not available, and could not reasonably have been obtained, before the medical assessment. However, par (b) suggests that the possibility of additional information is not necessarily a self-contained ground. Thus, it may be possible to identify “demonstrable error”, by relying upon factual material which was not available and not reasonably available to the worker prior to the medical assessment. There does not appear to be a simple dichotomy between the remedial grounds (a) and (b), and the “error-based” grounds (c) and (d). [11]

    10. [2021] NSWCA 236 at [61] (Gleeson JA and Payne JA agreeing).

    11. Ibid.

18. In principle, information known to the worker prior to the medical assessment (because, for example, it concerns his or her subjective experiences) would not qualify as additional information of the kind described in par (b) and commonly referred to as “fresh evidence”, a phrase used in s 328(3). In the present case, the supplementary statement provided by the plaintiff arguably fell into that category. The only reason that it was said not to have been “available” to the plaintiff before the assessment, and not reasonably able to have been “obtained” by him before the assessment, was that it purported to provide a factual basis for supporting different inferences from those drawn by the medical specialist as to the plaintiff’s condition. It may be doubted that it qualified as fresh evidence for the purposes of s 328(3). As Handley AJA explained in Lukacevic v Coates Hire Operations Pty Ltd:[12]

“98   The applicant's statement contains lengthy details of his activities and habits before and after his work injury. In so far as this adds to the history and his statement of 2 April 2008, or the histories in the medical reports before the AMS, it was available and could reasonably have been obtained before the assessment and was not admissible.

99   In so far as the statement repeats information in the earlier statement or in the medical reports it was not evidence ‘in addition to ... the evidence received in relation to the medical assessment’, and was not admissible.

100   There remains the evidence of what occurred during his medical examination by the AMS. This was ‘not available ... before that assessment’ and ‘could not reasonably have been obtained’ beforehand.”[13]

12. [2011] NSWCA 112.

13. The term “AMS” is commonly used and refers to the approved medical specialist who first decides a medical dispute and issues the medical assessment certificate: Workplace Injury Act, s 325.

19. Although the defendant objected to the reception of that statement before the Appeal Panel, no issue was raised in this Court to the Appeal Panel’s reliance upon it. In admitting the evidence, the Appeal Panel referred in its reasons to a statement of Deputy President Fleming in a case decided in 2002, [14] when par (b) was differently worded, in a significant respect, namely that the evidence must have been unavailable to the appellant “or” could not reasonably have been obtained by the appellant. There is now a single cumulative condition, the two parts being expressed conjunctively. [15] It is preferable that bodies operating under the terms of a specific statute address themselves to the language of the statute, rather than a paraphrase in a judgment or decision which may no longer be strictly on point. At the very least, the change in language should be acknowledged.

    14. Ross v Zurich Workers Compensation Insurance [2002] NSWCCPD 7.

    15. The change was made by the Workers Compensation Legislation Amendment Act 2010 (NSW), Sch 2, [12]. Curiously, Sch 2, [14] made a similar amendment to s 328(3), but left the distinction between “fresh evidence or evidence in addition to or in substitution for” evidence before the AMS.

19. If the evidence which is admitted is not properly identified as “fresh evidence”, but addresses circumstances different from those in evidence before the medical specialist, the evidence may raise a credibility issue for the Appeal Panel to resolve. (If the evidence does not support a different conclusion, it is in effect immaterial.) In the present case, the Appeal Panel accepted the supplementary statements made by the plaintiff at face value, but found that no different inferences should be drawn beyond those drawn by the medical specialist.

20. Understanding how the supplementary evidence operated is important in determining whether the Appeal Panel misunderstood its function. In effect the plaintiff’s case was that, where additional evidence was proffered and accepted, it was necessary, as a matter of law, for the Appeal Panel to undertake a further clinical examination of the worker. That conclusion was said to flow from the analysis of the Panel’s functions by the Court of Appeal in Siddik v WorkCover Authority of New South Wales. [16] The analysis in Siddik commenced with the following statement:

“59 The appellant’s contention is, in effect, that a s 328 review is confined to correcting error in the MAC [medical assessment certificate], and that the error must be one which has been the subject of the grant of s 327(3) leave. This suggests an appeal by way of rehearing. The first respondent’s submission that, once leave is granted, the Appeal Panel starts, in effect, with a blank page, suggest[s] an appeal de novo. Both submissions proceed on the premise that by using the word ‘appeal’ the legislature has invoked the concept of an appeal in the judicial context. It is convenient to commence an examination of the nature of a s 328 review by examining that concept. It will be necessary too to consider the concept of a ‘review’. It is also necessary to bear in mind that the s 328 appeal is from an expert’s assessment of the injured worker’s medical condition to an expert panel, comprised of two medical specialists, and an Arbitrator who may or may not be a lawyer.”

The reasoning continued:

“64   In an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order the subject of the appeal is the result of some legal, factual or discretionary error. In a hearing de novo the appellate tribunal’s powers may be exercised regardless of error ….

…

66   Conferring discretion on an appellate body to admit further evidence is indicative of a rehearing function. Such a power is of a remedial nature conferred ‘to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures’. Its purpose is to give the appellate body a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous or, too, what is ‘in practice [a] subsidiary purpose is to give the [appellate body] a discretion to admit further evidence to buttress the findings already made’ ….

67   In Strange-Muir v Corrective Services Commission (NSW) (1986) 5 NSWLR 234 (at 249) McHugh JA considered the nature of the hearing by one administrative body of an appeal against the decision of another administrative body. In his Honour’s view (at 250) ‘there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made. The hearing is not de novo. This is so whether or not the tribunal is empowered to hear additional evidence’ ….”

16. [2008] NSWCA 116 at [95]-[98] (McColl JA, Mason P agreeing).

22. Both the use of the term “appeal” and the presumption that a second de novo hearing is not intended, were apt in relation to the otherwise non-prescriptive terms of s 328. There was, as McColl JA noted, limited assistance available either from the language of s 328 or the case law as to the nature of the appeal under that provision. She referred, however, to tentative conclusions of mine in Campbelltown City Council v Vegan [17] to the effect that “the powers of the Appeal Panel may be limited to addressing, and if thought necessary, correcting, errors identified in the certificate granted by the approved medical specialist, as specified by the appellant”. [18] Those observations were approved by Mason P (McColl and Bell JJA agreeing) in Pitsonis v Registrar of the Workers Compensation Commission,[19] Mason P observing that “the ‘appeal’ to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh”. [20] To the extent that these comments are directed primarily to the “error-based” grounds, attention must be separately paid to the “remedial” grounds, as explained in Sleiman.

    17. (2006) 67 NSWLR 372; [2006] NSWCA 284 at [137].

    18. Siddik at [86].

    19. [2008] NSWCA 88 at [48].

    20. Ibid.

23. The description of the appeal in s 328(2) as being “by way of review of the original medical assessment” led McColl JA to an extended historical analysis of the use of the terms “appeal” (requiring identification of error on the part of the decision-maker) and “review” (which could allow for a fresh hearing). She also considered that, once a basis for intervention had been established, the Appeal Panel was not limited to the grounds relied by the appellant. However, at least that latter conclusion is no longer available, s 328(2) having since been amended to provide that “the review is limited to the grounds of appeal on which the appeal is made”. [21] The exercise in characterisation undertaken abstractly in Siddik must now take account of the available grounds in a particular case.

    21. Workers Compensation Legislation Amendment Act 2010 (NSW), Sch 12 [14].

24. In a passage in Siddik relied on by the plaintiff, after referring to the power to receive additional evidence, McColl JA stated:

“97 In such circumstances the Appeal Panel might be expected to review the MAC to determine whether the changed circumstances affect the conclusions the AMS reached. If it reaches that conclusion, then it must have the power to conduct the assessment anew, including, if necessary, undertaking an examination of the injured worker as contemplated by s 324. That appears to presume something in the nature of a hearing de novo ….”

25. However, these categorisations are often unhelpful. On the one hand, the power to re-examine the worker is not restricted to an appeal on the grounds under pars (a) and (b); on the other hand, an appeal panel is restricted to the grounds identified by the appellant (though that was not true in 2008). As the joint reasons of the High Court in Kostas v HIA Insurance Services Pty Ltd [22] explained, in describing the nature of an appeal from the Consumer, Trader and Tenancy Tribunal (NSW):

“88   … First, it is not useful to attempt to chart the metes and bounds of the task given to the Supreme Court by s 67 of the Tribunal Act, and to attempt to do so is dangerous. Secondly, to attempt such a task at the level of abstraction at which the submissions of the parties were cast, or in terms divorced from the circumstances of a particular case, would invite error.

89    … The language of the statute must be the relevant starting point, not a taxonomy which seeks to reduce a wide variety of statutory provisions to a few discrete categories.”

22. (2010) 241 CLR 390; [2010] HCA 32 (Hayne, Heydon, Crennan and Kiefel JJ).

26. The plaintiff submitted that the Appeal Panel’s reasons did not “identify that the Appeal Panel was alive to the two aspects of the power under [s 328]”. These were identified as an ordinary appeal by way of rehearing for correction of error and a separate power to conduct a fresh hearing on the basis of fresh evidence. The plaintiff found confirmation for this analysis in the judgment of Schmidt J in Versace v Australia’s Best Tyres & Auto Pty Ltd. [23]

    23. [2016] NSWSC 1540 at [35]-[39].

27. However, this submission cannot be accepted for three broad reasons. First, although it is true that in Siddik McColl JA described s 328(2) as providing “a novel form of appeal”,[24] that view must have depended upon the fact that, at that time, s 327(3) allowed an appellant to provide “additional relevant information” that was not “available to” the appellant before the medical assessment appealed from, whether or not it could reasonably have been obtained at that time. If that is the reason for the description of the form of appeal as “novel”, it is no longer sound because the general principles applying to fresh evidence (namely that it must be evidence that “could not reasonably have been obtained”) now qualify the right to call additional evidence. Thus, while it is not an appeal in the strict judicial sense (on the evidence and according to the law in force at the time of the initial decision), it is not different from the form of rehearing conducted in the Supreme Court under s 75A of the Supreme Court Act 1970 (NSW). To identify the powers conferred on the Appeal Panel as involving two different functions is, if not inaccurate, at least likely to be misleading. In any event, an analysis of a statute conferring functions on a non-judicial body which relies heavily on principles applied in characterising judicial functions is likely to lead to unsound conclusions. Siddik preceded Kostas by two years.

    24. Siddik at [100].

28. Secondly, the observations in Versace were undoubtedly obiter, as no additional evidence had been adduced in that case. The same appears to be true of Siddik, as Giles JA explained:

“6 The question for this Court is not answered, it seems to me, by analysis of the nature of the appeal to the Appeal Panel as an appeal strictly so-called, an appeal by way of rehearing or a hearing de novo. The Appeal Panel did not purport to conduct a rehearing regardless of error, but found error in what the AMS had done. It did not purport to act on material additional to that before the AMS, or to consider circumstances or law other than as at the time the AMS made his assessment. The question for this Court arises from s 327. In the ‘appeal … by way of review of the original medical assessment’, these words being found in s 328(2), could the Appeal Panel act upon the ground for appeal in s 327(3)(c) by finding that the assessment was made on the basis of incorrect criteria in a respect other than as had been stated by the first respondent?”

29. The discussion in the reasons of McColl JA, although no doubt instructive, did not require determination of the issue now relied on by the plaintiff.

30. Thirdly, and critically, none of the authorities referred to by the plaintiff considered whether the Appeal Panel had power to determine the scope of its function in a particular case. If it did, this Court would be slow to find that it misconceived a function which was described in the statute in broad but flexible terms, by imposing some implied constraint not expressed in the statute nor necessary for the Panel’s functions.

31. The effect of the plaintiff’s submission was that, once the Tribunal had accepted “additional evidence” it was bound to undertake a “de novo” or fresh hearing of the whole of the case. This ground was separate from the challenge to the reasons for not conducting a clinical examination. Accepting for present purposes that the Panel considered whether it should conduct a clinical examination, the plaintiff’s case was that, having admitted additional evidence, the Panel’s power was legally constrained so that it could not as a matter of law decline to conduct the examination.

32. That submission was doubly misconceived. First, it assumed that the additional evidence was relevant to some aspect of the plaintiff’s condition which could be further revealed by conducting a clinical examination. Secondly, it denies to the Appeal Panel the power to make its own assessment as to the usefulness of a clinical examination in the context of the additional evidence. There is nothing in the statute which would support that conclusion. On the contrary, the power to conduct the appeal is conferred upon a tribunal comprising two medical specialists and an arbitrator. [25] In the absence of an express requirement as to how they are to conduct their function, the apparent statutory purpose is to allow them to conduct an appeal according to their professional judgment. There may be a need to accord procedural fairness, but the circumstances in which that will arise will be limited given that the review itself is limited to the grounds of appeal raised by the appellant.

    25. Workplace Injury Act, s 328(1).

33. To the extent that it is useful to consider the nature of the additional evidence relied on by the plaintiff, that will be discussed below. It demonstrates that the Panel’s decision, far from being manifestly unreasonable (which may have been the only available ground of challenge), was entirely rational.

34. It remains to refer to three authorities upon which the plaintiff sought to rely. First, there is the decision of the Court of Appeal in Allianz Australia Insurance Ltd v Rutland,[26] and in particular, a passage to the following effect:

“33   … In the circumstances, and recognising that clinical judgment between medical practitioners may vary on the issue which had to be assessed, it would, in our view, be surprising and unusual that a panel of medical assessors seeking to assess a person’s degree of impairment due to a particular psychological injury would not interview the relevant individual so as to be satisfied that they have an accurate and complete history of his or her pre-accident lifestyle….”

26. [2015] NSWCA 328 (McColl and Meagher JJA, Macfarlan JA agreeing).

35. Reliance on Rutland failed to have regard to the relevant statutory context. Rutland was concerned with a review under the Motor Accidents Compensation Act 1999 (NSW), s 63(3A), which required that “[t]he review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned”. That statutory function is in materially different terms from the function conferred under s 328 of the Workplace Injury Act. The reasoning in Rutland provides no assistance in the present case.

36. Next, the plaintiff sought to rely upon the decision of Drosd v Workers Compensation Nominal Insurer. [27] The reasoning in Drosd noted that the Appeal Panel had identified an error in the assessment made by the medical specialist and continued:

“61   … the fact that there was no appeal against that specific assessment by the AMS is beside the point. Once the Appeal Panel determined to set aside the [medical assessment certificate], it was required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides.”

27. [2016] NSWSC 1053 (Garling J).

37. This case is not in point. First, in the present case, the Panel did not decide to set aside the certificate. Secondly, it is doubtful that there is a two-step process required under s 328. Thirdly, Drosd was criticised by the Court of Appeal in Queanbeyan Racing Club Limited v Burton. [28] In any event, Drosd takes the matter no further for present purposes.

    28. [2021] NSWCA 304 at [31]-[35].

38. Finally, the plaintiff relied upon the judgment in Ferguson v State of New South Wales. [29] Ferguson involved what was said to be an undue sensitivity on the part of the Appeal Panel to enquiring into the nature of the “life partnership involving sexual intimacy” which was said to have broken down as a result of a compensable injury. The Appeal Panel determined that “[t]he evidence does not sustain a finding that the relationship is strained, rather that its nature may have altered”. [30] The Court determined that not recognising that there may have been a material alteration in the nature of the relationship led the Appeal Panel to ask itself “the wrong question”. [31] The plaintiff’s submissions continued: [32]

“In the Ferguson decision, the Court’s scrutiny of the Appeal Panel’s decision included examining with specificity the exemplar description in the class ratings, and then examining with specificity the findings, and the evidence, to see whether the conclusions of the Appeal Panel were erroneous.”

29. [2017] NSWSC 887 (Campbell J).

30. Ferguson at [29].

31. Ferguson at [29], [33].

32. Plaintiff’s written submissions, 18 May 2022, par 32.

39. Ferguson has no bearing on the present issue of power, but may be relevant to the second broad issue and will be considered in that context.

40. It is not correct to say that the Appeal Panel misunderstood its function in circumstances where it had regard to the additional material provided by the appellant, which it took into account in assessing the correctness of the decision of the medical specialist. The Panel considered whether to conduct a further clinical examination and decided not to. In the absence of any legal obligation to conduct such an examination, ground 7(a) must be rejected.

Reasons for not conducting clinical examination: grounds 7(b), (c)

41. The second aspect of the first issue raised by the plaintiff was directed to the obligation to give reasons and, in particular, an alleged failure of the Panel to provide reasons for not conducting a further clinical examination.

42. There is no statutory obligation upon the Appeal Panel to give reasons for its determination of an appeal, but such an implied obligation was accepted by the Court of Appeal in Vegan at [26]. So much may be accepted. The question for present purposes concerns the scope of the obligation in relation to reasons for a decision based on expert medical opinion.

43. The standard for reasons required of an appeal panel dealing with a medical assessment was considered by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak. [33] That case concerned the reasons given by a medical panel constituted under the Accident Compensation Act 1985 (Vic), s 68(2) of which required that a medical panel “to whom a medical question is so referred must 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.

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.”

33. (2013) 252 CLR 480; [2013] HCA 43.

44. The Court rejected the suggestion that the reasons were required to explain why the panel rejected some expert medical opinions or preferred others. The requirement to identify a path of reasoning by which it arrived at its opinion did not entail an obligation “to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.”[34] The Court further noted, dealing with the facts before it:

“63   The answer to the worker's complaint lies in the implicit finding of the Medical Panel that the worker on 16 October 1996 sustained only a soft tissue injury, and not an injury to his spine. That finding was one of fact. Whether or not that finding of fact was open to the Medical Panel is a question of law. But no further explanation of the reasoning process adopted by the Medical Panel is necessary to enable a court to address that question.”

34. Wingfoot at [56].

45. Although Wingfoot was concerned with a statutory obligation to give reasons, it is appropriate to adopt a similar approach in relation to the implied obligation under the Workplace Injury Act, based on a similar purpose from which it is derived. That purpose is to ensure that, to the extent possible, any error of law in the reasoning of the Appeal Panel is revealed and may be the subject of an application for judicial review. However, as a practical matter, the Appeal Panel is likely to determine the question before it as a matter of expert medical opinion, the basis for which is peculiarly a matter of its special expertise and which will rarely give rise to any error of law, except on the basis that it is devoid of support in the material before the panel.

46. There is no doubt that the Appeal Panel had the power to invite the plaintiff to attend for a further clinical examination. However, for the reasons already discussed, there was no obligation to do so. Whether or not the power should be exercised turned on a matter of professional judgment. That judgment was properly to be exercised by reference to the materials available to the Appeal Panel in written form, and assessed by them, relying on their professional expertise and experience.

47. The determination of the Appeal Panel commenced by setting out the nature of the application, including the grounds, and the procedural background, noting that the plaintiff had suffered an injury and that the question was the extent of his whole person impairment. The Panel noted that there had been a previous appeal panel determination which had been set aside on the basis that it failed to provide reasons for not re-examining the plaintiff. The Panel noted that the plaintiff sought to challenge the categorisation by the medical specialist of his impairment in three categories, to which reference will be made shortly. The Panel then turned to consider the application to adduce fresh evidence. As has been noted, it took the view that the material sought to be presented in order to “try to remedy errors made by the AMS” was indeed material which was not available before the assessment and as such was relevant. [35] It noted that, to the extent that the additional material included “matters going to the process whereby the AMS makes his or her assessment”, it was not to be relied upon. [36] (That last finding was the subject of a separate challenge addressed below.)

    35. Appeal Panel decision, par 19.

    36. Appeal Panel decision, par 20.

48. The Panel then stated that it had conducted a “preliminary review” of the original medical assessment and had determined “that it was not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination”. [37] The reasons continued:

“23. There is no doubt an Appeal Panel has a power to re-examine a claimant by reason of s 324(1)(c) and s 324(3). In the circumstances of this case however, the Appeal Panel is satisfied that there was a significant amount of expert material, treating records and also evidence from the appellant to satisfy itself that a re-examination is not necessary.

24.   The Appeal Panel also has the benefit of the applicant’s statement which addresses the alleged flawed factual matters that the appellant states the AMS took into account in reaching his assessment.”

37. Appeal Panel decision, par 22.

49. That statement is sufficient to indicate that the Appeal Panel addressed the question of whether to re-examine the plaintiff, determined that it did not need to do so, and gave a reason, namely that there was sufficient expert material, together with the plaintiff’s own statements, to allow it to determine the appeal.

50. The basis on which it was submitted that those reasons were insufficient is obscure. In fact, the written submissions filed by the plaintiff did not address the issue. In the course of oral argument senior counsel for the plaintiff did not abandon the ground, but neither did he expand upon it.

51. Despite the lack of substance underlying this ground, two further observations should be made. First, this case demonstrates the danger in seeking to apply some general standard as to when a claimant should be subjected to a further clinical examination. This was a case where the claim turned almost entirely upon findings concerning the plaintiff’s social functioning. Except to the extent that he sought to rely on observations by other persons, the claim turned almost entirely upon self-reporting. Thus, the additional evidence, far from providing the basis for a need for clinical re-examination, provided the very material which he would have wished to adduce in the course of such an examination.

52. Secondly, the adequacy of the reasons for not carrying out the examination must be viewed in the particular context of the case. Thus, when viewed as a whole, the adequacy of the reasons is overwhelmingly established. The Appeal Panel, as will be discussed further shortly, explained precisely and in detail how it took into account the additional information and compared it with and assessed it against the criteria to be applied for the purposes of the medical assessment. In short, the Panel accepted the plaintiff’s assertions at face value. No doubt, if it had doubted his truthfulness or reliability, it might well have thought it appropriate to re-examine him, that is to explain his current state of mind and social functioning in circumstances where it would be able to test his statements. As that was not necessary, it is readily understandable that a further re-examination was deemed unnecessary.

53. Accordingly, to the extent that they were not abandoned, grounds 7(b) and (c) should be rejected.

Challenge to limitation on use of additional evidence: ground 7(d)

54. Ground 7(d) asserted that the Appeal Panel had misunderstood and misapplied the decision of this Court in Petrovic v BC Serv No 14 Pty Ltd. [38] This issue was not developed in the written submissions. The Appeal Panel stated:

“20   In Petrovic…, the Court held that ‘additional relevant information… does not include matters going to the process whereby the AMS makes his or her assessment’. To this extent the Medical Appeal Panel cannot accept statement material that goes towards the process whereby the AMS makes his or her assessment, we only accept the evidence in relation to correcting factual assumptions made by the AMS.”

38. [2007] NSWSC 1156 (Hoeben J).

55. It is by no means clear to what this paragraph referred. It may have been a standard qualification adopted by appeal panels. The particular issue in Petrovic appears to have been a dispute as to the competence of an interpreter used in the course of the initial clinical examination. It is also possible that Petrovic has been misunderstood. It contained no unqualified rejection of evidence which went to the “process” before the medical specialist. Rather, Hoeben J, construing words in s 327(1)(b), stated:

“31 In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s 327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s 326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s 327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s 327(3)(c) and (d) but they do not come within subs 327(3)(b).”

56. It not being explained how any misreading of Petrovic affected the decision in the present case, ground 7(d) must be rejected.

Application of the psychiatric impairment ratings scale: grounds 7 (e), (f), (g)

57. The second set of grounds challenged the findings of the Appeal Panel with respect to the criteria specified in the approved guidelines for assessing psychiatric impairment. [39] Dr Hong applied the authorised rating scales to assess the degree of the plaintiff’s impairment under each of the six prescribed categories. Before the Appeal Panel the appellant challenged his assessments under three, namely (i) social functioning, (ii) social and recreational activities and (iii) self-care and personal hygiene. He now alleges error of law on the part of the Appeal Panel in rejecting each challenge.

    39. Known as the “NSW workers compensation guidelines for the evaluation of permanent impairment” (“the guidelines”).

58. As counsel for the defendant noted, and as the Appeal Panel noted, Dr Hong’s assessment differed from that of the plaintiff’s consultant psychiatrist, Dr Michael Robertson, on only one scale, namely self-care and personal hygiene. To conclude that the Appeal Panel erred in law in accepting the evidence of the plaintiff’s own expert in regard to two categories would require a clear case of disregard of some critical element in the case. Senior counsel for the plaintiff submitted that Dr Robertson’s report was dated, having been prepared in February 2019, but was not able to identify any change in the plaintiff’s circumstances since then revealed in the evidence.

59. To consider these grounds it is convenient to set out the effect of the plaintiff’s supplementary statement, as did the Appeal Panel at this stage of its reasons. The supplementary statement covered 3 pages, parts of which involved commentary, such as “I felt that Dr Hong was not asking as many questions as I believed he should have about my condition.” Such comments did not contain information or evidence, but constituted submissions as to the process undertaken by Dr Hong. It may have been matters of that kind which the Appeal Panel, applying Petrovic, disregarded. It was entitled to do so.

60. Secondly, the plaintiff recounted statements he had made to Dr Hong which he believed were not accurately or completely addressed by Dr Hong in his reasons for his medical assessment certificate. Some of the complaints appear quite trivial, whilst others appear to have substance, if accepted. Whether they were trivial or substantial was a matter for the Appeal Panel. The Appeal Panel reasons identified a number of matters which it treated as “relevant evidence”. [40]

    40. Appeal Panel decision, pars 40-48.

61. Thirdly, the plaintiff included additional information which had not been supplied to Dr Hong. For example, he stated:

“Dr Hong did not ask me whether I skip meals or binge eat. If he had asked me, I would have told him that I often skip meals and will often binge eat, particularly after dinner, which is very bad for my blood sugar levels. So I do not think that it is accurate to say that I eat regularly.”

This additional material was expressly adverted to by the Appeal Panel. [41]

41. Appeal Panel decision, par 45.

62. By way of introduction to the further grounds, it is also appropriate to identify the provisions of the guidelines against which the plaintiff’s condition was assessed, namely chapter 11 which is headed “Psychiatric and psychological disorders”.

63. Paragraph 11.11 sets out six tables comprising the “psychiatric impairment rating scale (PIRS)”. Each scale requires a specified category of impairment to be assessed with a score, described as assigning a “class” from 1-5. [42] The numerical scores are translated to a percentage of whole person impairment. The plaintiff challenged the scores (classes) given by the Appeal Panel with respect to “social functioning” (table 11.4), “social and recreational activities” (table 11.2) and “self-care and personal hygiene” (table 11.1). Each table provides a range from “class 1” through to “class 5”, with descriptions (sometimes referred to as “exemplars”) for each class. Thus, with respect to social functioning, class 2 covers:

“Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”

Class 3 covers:

“Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”

42. The counter-intuitive use of language was remarked on in the curiously titled Ballas v Department of Education (State of New South Wales) [2020] NSWCA 86 at [87] (Bell P and Payne JA).

64. These examples are apposite because the plaintiff complained that he had been placed in class 2, rather than class 3, with respect to social functioning. Two observations may be made about such a complaint. First, as the guidelines indicate, “[e]valuation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method”. [43] It is, self-evidently, no function of this Court to review the classification by the Appeal Panel. Nor, as has occasionally been considered, would it be appropriate for this Court to identify from the reasons that the Appeal Panel has asked itself “the wrong question”, thereby establishing error of law. While extreme cases where error may be established can be imagined, they will be readily apparent because the Appeal Panel has confused one appellant with another or made some equivalent manifest error, sufficient to constitute an error of law on the face of the record, or jurisdictional error.

    43. Guidelines, par 11.2.

65. Although the three grounds challenging the exercise undertaken by the Appeal Panel in assessing the psychiatric impairments did not assert inadequacy of reasons, they were expressed as allegations that the Panel “did not apply focus to ascertaining whether on the facts” the plaintiff’s circumstances fell within class 2 or class 3. That submission ran into the difficulty arising from the principles stated in Wingfoot, namely that the reasons were required to address the finding in fact made, and not possible alternative findings. Senior counsel for the plaintiff submitted, fairly, that a failure to refer to possible alternative findings might reveal a failure on the part of the Appeal Panel to address the plaintiff’s case. However, that inference could not be drawn in the present circumstances. With respect to each specific table in the guidelines, the Appeal Panel set out the paragraphs identifying class 2 (as found by Dr Hong), followed by a statement that “[t]he appellant seeks a reclassification of a class 3 rating”, the relevant provision for class 3 then being set out. The issue was thus expressly identified.

66. In these circumstances, it would be sufficient to state that no error of law has been established with respect to the exercise undertaken by the Appeal Panel. There was no suggestion that par (c) of s 327 was in play: the Appeal Panel applied (as had Dr Hong) the correct criteria. To the extent that additional information was relied upon, the Appeal Panel considered those aspects of the supplementary statement of the plaintiff in relation to the criteria to which they related. That left only the question whether the plaintiff had established any change in the appropriate class resulting from that information and whether he had established failure on the part of the Appeal Panel to apply the correct legal criterion of “demonstrable error”. In that respect, the Appeal Panel concluded, in the exercise of its professional expertise, that the additional information did not make any material change to the circumstances considered by Dr Hong. [44] It further stated that in respect of none of the categories, was error demonstrated. The specific issues raised by the plaintiff may, however, be shortly identified with respect to each category.

    44. Appeal Panel decision, par 65.

Social functioning

67. The issue with respect to “social functioning” concerned evidence that the plaintiff had, since the employment with the defendant, lived by himself, had an increasingly tense relationship with his 18-year-old daughter, and had lost friendships. Depending on the degree of deterioration, including with existing relationships, the table in the guidelines provides that the impairment may be described as “class 2” or “class 3”. The submissions included the following proposition: [45]

“… the Appeal Panel did not focus on ascertaining whether there had been impact to the plaintiff’s relationship with his daughter that amounted to ‘severely strained’, as opposed to ‘strained’.”

45. Plaintiff’s written submissions, par 41.

68. The Appeal Panel set out the relevant criteria, considered the evidence and concluded that there was no error in classifying his condition as falling within class 2. The proposition set out above does no more than state a degree of disagreement about the proper classification. It has been said that mere disagreement with the outcome does not give rise to a basis for intervention. That is true, but that is because such a “disagreement” relates to a factual assessment and, in its terms, engages no legal principle and therefore cannot demonstrate error of law on the face of the record.

69. The plaintiff suggested that the Appeal Panel had failed to undertake an assessment in the form required in Ferguson. Unsurprisingly, Ferguson involved different facts. Furthermore, the Court’s reasoning in Ferguson was perilously close to a merit assessment of a factual issue. It provides no assistance.

70. The plaintiff also sought to obtain assistance from the reasoning of the Court of Appeal in Ballas v Department of Education. [46] Ballas, as the plaintiff accepted, involved a different exercise, namely a challenge to a “gateway” decision by a delegate of the registrar under s 327(4), refusing to refer a proposed appeal to a medical appeal panel. The contention for the applicant, Ms Ballas, was that the medical specialist had wrongly taken into account, in assessing her “social and recreational activities”, a solitary activity which might have been relevant to other areas of impairment but did not bear upon that identified as “social and recreational activities”. The Court accepted that submission, concluding that the delegate did not properly consider whether that contention was capable of constituting a “demonstrable error”. The Court held that the reasons of the delegate revealed that she had confused the concepts of “scales” and “classes” and had wrongly concluded that the allocation of a function to a particular scale, and then concluding that the appropriate categorisation was a matter of discretion for the medical specialist, revealed legal error which appeared on the face of the record, namely the delegate’s reasons. [47] However, the Court then proceeded, in a passage on which the plaintiff relies, making the following observations:

“94   Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI [whole person impairment] assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”

46. See footnote 42 above.

47. Ballas at [93].

71. The function of the delegate under s 327(4) was to determine whether the appellant had identified a ground which was capable of constituting “demonstrable error” on the part of the medical specialist. That error did not need to be a legal error. Accordingly, the assessment of a particular activity under the wrong “scale” could constitute a factual error. Clearly it was an error which was reviewable by an appeal panel. As the joint reasons in Ballas sought to make clear, the exercise being undertaken by the medical specialist was evaluative, not discretionary. The use of the phrase “taking into account an irrelevant consideration” might suggest an error of a kind which would be described as jurisdictional error for the purposes of judicial review, and hence applicable in the present case. However, the Court in Ballas did not say that the delegate was required as a matter of law to identify a jurisdictional error on the part of the medical specialist. It was sufficient (as the Court held) that the delegate had failed, through a misunderstanding of her proper function, to accept an argument that was capable of amounting to “demonstrable error” on the part of the medical specialist.

72. The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor “social and recreational activities” if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term “recreational” by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.

73. Even if such an implausible reading of the joint reasons in Ballas were correct, it was not necessary for the determination in Ballas. In any event, no similar error is alleged to have occurred in the present case: the question here is whether the Appeal Panel erred in assigning a particular class (that is level of severity) in relation to conduct which concededly fell within the particular scales (or categories).

74. The second category as to which complaint is made is that of “social and recreational activities”. The plaintiff’s written submissions took issue with the Appeal Panel’s statement that “[t]here is no evidence that the appellant requires a support person to leave the house though the Appeal Panel accepts that his friend Garth assists him at times. On other occasions, the appellant is able to go kayaking and shopping by himself”. (Emphasis in submission.)

75. Again, the issue raised is simply a factual assessment with which the plaintiff disagrees. There was no attempt to identify any error of law in the reasons of the Appeal Panel. The suggestion that the Panel erred in law because it used the phrase “no evidence”, a legal expression connoting an error or proposition of law, should not be accepted. Non-lawyers often speak of there being ‘no evidence of X’ when meaning there is ‘no evidence sufficient to persuade me of X’. Indeed, lawyers also express themselves in such shorthand.

76. The third category is “self-care and personal hygiene”. The issues related to the number of times per week the plaintiff showers, whether he eats regularly and manages his diet and whether he needed regular support with respect to his independent living. The thrust of the plaintiff’s submissions was identified in the following proposition: [48]

“The Ferguson decision, and consistently the Ballas decision, establish that, in practical terms, the Appeal Panel was required to consider how the core applicable elements of the exemplar class descriptions were material to the facts of the dispute between the parties, and then those facts needed to be scrutinised, with specificity, to ascertain the correct class rating.”

48. Plaintiff’s written submissions, par 55.

77. If this submission sought to identify error in a failure to apply the guidelines and the “exemplars” given in the guidelines, it is patently false. The Appeal Panel identified the relevant parts of the guidelines and discussed factors which were undoubtedly relevant to that exercise.

78. If the submission required that the reasons demonstrate a particular level of scrutiny and degree of specificity with which the facts were scrutinised, that proposition must also be rejected. If it is to be derived from the authorities referred to, those authorities should not be followed: they predate Wingfoot and do not reflect its reasoning. This kind of exercise invites a merit review of factual findings with no attempt to identify an error of law on the face of the record. Grounds 7 (e), (f) and (g) must be rejected.

Other matters

79. As noted above, the somewhat formulaic statement in the Appeal Panel reasons drawn from Petrovic was not said to be dispositive in this case. In a similar category were two other passages in the reasons which were not said to demonstrate material error, perhaps in part because they appear to be formulaic and bore little resemblance to the reasoning which followed. First, in Glenn William Parker v Select Civil Pty Ltd, [49] the Court stated, in a passage set out by the Appeal Panel at par 33 of its reasons:

“66   In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense.”

49. [2018] NSWSC 140 (Harrison AsJ).

80. That approach resulted in the Court determining that the error identified by the Appeal Panel, being “a difference of opinion about which reasonable minds may differ”, was not a “demonstrable error” and therefore the Appeal Panel had committed an error of law appearing on the face of its reasons, which required its medical assessment to be set aside.

81. That approach obtained support from the reasoning of the Court in Versace, referred to above, where Schmidt J stated that the Appeal Panel “could not simply substitute its own view for that of the medical specialist, absent a finding of error of the kind alleged on the appeal”. [50] As appears from the reasons of the Appeal Panel in Parker, set out by the judge at [38], the Panel expressly found error and determined that a different outcome was “the more appropriate one on the history taken by the AMS and the available evidence”.

    50. Versace at [39].

82. To be affirmatively satisfied that such a finding revealed that the appeal panel had failed to apply the correct legal test required a definition of “demonstrable error” which must at least be contentious. It is not a term of art and it is by no means clear that it has some precise legal definition. To confine an appeal panel as to the circumstances in which it can set aside a medical assessment certificate will result in an increase in the powers of this Court to set aside the determination of appeal panels, a result not consonant with principle as to the confined scope of judicial review.

83. Secondly, there appears in the Appeal Panel reasons a statement in the following terms:

“34   In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Justice Garling said at paragraph 73:

‘It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.’”

84. That statement was no doubt correct: but if the inference were that an appeal panel can only uphold an appeal where an error warranting judicial review in the supervisory jurisdiction of the Court was demonstrated, that was plainly wrong. It may be that some confusion arose because the first of the two sentences quoted referred to “the clinical judgment of the AMS”, from which the appeal was taken. However, the explanation lay in the fact that the appeal panel upheld the decision of the AMS. The Court refused the application for judicial review of the appeal panel’s determination. The inclusion of this passage in the reasons of any appeal panel is apt to confuse and might, if it were acted upon, demonstrate legal error.

85. Thirdly, the Appeal Panel, after setting out the extracts from Parker and Jenkins identified above continued:

“35   The Appeal Panel therefore considers for the PIRS categories assessed by the AMS to be erroneous it [sic] must fall into one of the following categories:

(a)   The categorisation was glaringly improbable;

(b)   The AMS was not aware of significant factual matters;

(c)   A clear misunderstanding could be demonstrated, and

(d)   The unsupportable reasoning process could not be made out.”

This passage contains a footnote at the end referring to the discussion by Campbell J in Ferguson.

86. There are three difficulties with this approach. First, subpar (d) makes no sense. The relevant passage in Ferguson at [24] identifying the basis for intervention accepted by the Appeal Panel in that case read, “or if an unsupportable reasoning process could be made out”.

87. Secondly, in Ferguson, the judge was satisfied that, according to those standards, the appeal panel’s finding of error itself involved an error of law on the face of its reasons. [51] For present purposes, that finding is beside the point: the question is why Ferguson is authority for the test (if correctly transcribed) set out by the Appeal Panel in the present case. It appears to be a gloss on the language of s 327(3), read with s 328(2).

    51. Ferguson at [33].

88. Thirdly, the statement constituted a summary of the reasons of an appeal panel in NSW Police Force v Wark. [52] The summary was not inaccurate, but read in context the reasoning was more nuanced and clearly not a statement of legal principles. Wark involved a police officer who had suffered psychological injury as the cumulative effect of a series of traumatic incidents. The employer appealed from the medical assessment but did not request a further clinical examination and none was undertaken. In that context the Appeal Panel stated:

“32   The question of the classification under the PIRS scale is very much one for the AMS after a balancing of all the information before him. There can be some grey areas in which other minds might ascribe a higher or lower rating, but unless a glaringly improbable categorisation has been made, or it can be demonstrated that the AMS was unaware of significant factual matters, the assessment is very much a matter for him/her based upon clinical experience and the assessment of all the material before him.

33   In this branch of medical science, the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. It is very [difficult] in this field for other specialists to superimpose their opinion unless there has been a clear misunderstanding or an unsupportable reasoning process for the rating given.”

52. [2012] NSWWCCMA 36.

89. The panel in Wark then referred to a passage in the reasons of Mason P in Pitsonis in which the President equated “demonstrable error” with error manifest from an examination of the document referring the dispute for assessment and the medical assessment certificate. Care should be taken in applying that explanation in place of the statutory term.

90. As noted above, these apparently formulaic statements were not applied: the reasoning of the Appeal Panel in the present case demonstrated careful attention to the material before it, resulting in satisfaction that “there is no demonstrable error” in the medical assessment. [53]

    53. Appeal Panel decision, pars 66, 67.

Conclusions

91. For the reasons set out above, no error of law of the kind that would warrant the intervention of this Court has been identified. Accordingly, the application for judicial review must be dismissed.

92. The Court makes the following orders:

1. Dismiss the amended summons filed on 8 February 2022 seeking judicial review of a decision of an appeal panel of the Personal Injury Commission of 21 September 2021.

2. Order that the plaintiff pay the defendant’s costs in this Court.

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Endnotes

Decision last updated: 12 July 2022