Tagg v Racing New South Wales

[2025] NSWSC 508

Supreme Court

New South Wales

Medium Neutral Citation:

Tagg v Racing New South Wales [2025] NSWSC 508

Hearing dates:

21 March 2025 and 7 May 2025

Date of orders:

22 May 2025

Decision date:

22 May 2025

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order that the amended summons filed 7 April 2025 be dismissed.

(2) Order the plaintiff to pay the first defendant’s costs of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review of the decisions of two medical Appeal Panels – whether the Appeal Panels committed jurisdictional error by not assessing whole person impairment in accordance with the relevant Guidelines – whether the Appeal Panels acted beyond jurisdiction – whether the Appeal Panels failed to provide adequate reasons – where the Appeal Panels were bifurcated to separately decide on neurological and psychological matters – where the bifurcated Appeal Panels shared a common member – many grounds and sub-grounds of appeal – amended summons dismissed

WORKERS COMPENSATION – horse spooked by fox – plaintiff fell from horse – physical and psychological injuries – dispute about the assessment of whole person impairment – new medical assessment certificates previously issued

Legislation Cited:

Personal Injury Commission Act 2020 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

AAMI Ltd v Ali (2012) 62 MVR 12; [2012] NSWSC 969

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Ballas v Department of Education (State of New South Wales) (2020) 102 NSWLR 783; [2020] NSWCA 86

Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd (2014) 13 DDCR 156; [2014] NSWCA 264

Bisley Investment Corporation v Australia Broadcasting Tribunal (1982) 40 ALR 233

Cole v Wenaline Pty Ltd [2010] NSWSC 78

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322

Department of Education v Mansfield [2025] NSWSC 325

Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365

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

Folbigg v Attorney-General (NSW) (2021) 391 ALR 294; [2021] NSWCA 44

Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633

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

Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304

Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Sleiman v Gadalla Pty Ltd [2021] NSWCA 236

Sydney Trains v Batshon [2021] NSWCA 143

Tagg v Racing New South Wales [2023] NSWSC 1547

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

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

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision, 2000)

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

Category:

Principal judgment

Parties:

Desiree Tagg (Plaintiff)
Racing New South Wales (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
The First Appeal Panel, as an appeal panel constituted under s 328, Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant)
The Second Appeal Panel, as an appeal panel constituted under s 328, Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Fourth Defendant)

Representation:

Counsel:
L Robison (Plaintiff)
D Talintyre & M Cobb-Clark (First Defendant)

Solicitors:
Santone Lawyers (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)
NSW Crown Solicitor’s Office (Second, Third and Fourth Defendants)

File Number(s):

2024/00419984

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Personal Injury Commission of New South Wales

Jurisdiction:

Medical Appeal Panel

Date of Decision:

12 August 2024; 13 September 2024

Before:

Marshal Douglas, Dr Ross Mellick and Dr Mark Burns (12 August 2024)

Marshal Douglas, Dr Graham Blom and Professor Nicholas Glozier (13 September 2024)

File Number(s):

M2-W5515/21; M1-W5515/21

JUDGMENT

Introduction

1. By amended summons filed 7 April 2025 (‘the amended summons’), Desiree Tagg (‘the plaintiff’) seeks judicial review of two decisions from two Personal Injury Commission (‘the Commission’) Medical Appeal Panels (‘the Appeal Panels’). The first is dated 12 August 2024 (that, shortly stated, relates to a claim for permanent impairment compensation for a traumatic brain injury) and the second is dated 13 September 2024 (that, shortly stated, relates to a claim for permanent impairment compensation for psychological injury).

2. The plaintiff argues that the Appeal Panels committed an array of jurisdictional errors and an error of law on the face of the record when determining the medical disputes. She seeks an order in the nature of certiorari, to quash both decisions and remit her claims to differently constituted appeal panels, to be determined according to law.

3. Although there are, broadly, eight grounds of review, many (in fact, most) grounds involve multiple sub-parts and span both decisions. The nature and extent of the challenges raised by the plaintiff in the amended summons, and the fact that two decisions are being challenged, explains the length of this judgment.

4. Racing New South Wales (’the first defendant’) – the only active defendant – is agreed to be the plaintiff’s employer for present purposes. It resists the relief sought by the plaintiff. The President of the Commission and the Appeal Panels have filed submitting appearances.

Background

The nature of the claim: an overview

5. On 15 June 2018, the plaintiff, a jockey, was injured when she fell from the saddle of a horse that she was riding during training. The saddle “rolled” after the horse was “spooked” by a fox, which ran onto the track whilst the horse was galloping.

6. The plaintiff submitted a claim for compensation against the first defendant on 22 June 2018. That claim extended to seeking compensation for permanent impairment for the injuries sustained in the accident.

7. Those injuries were described in the “Application to Resolve a Dispute” dated 1 November 2021, that was filed by the plaintiff in the Commission (‘the Application’), as “primary physical and psychological injuries”, including “injury to [the] cervical spine, left upper extremity (shoulder), skin (scarring) and traumatic brain injury” and “adjustment disorder with depressed mood”. The plaintiff’s claim for permanent impairment compensation, pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (‘the WCA’), was for a 31% and 22% whole person impairment (‘WPI’) for the physical and psychological injuries respectively.

8. A dispute arose about the degree of permanent impairment suffered by the plaintiff. The first defendant, by a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (‘the WIM Act’), disputed its “[l]iability for the permanent impairment component” of the plaintiff’s claim. That notice included a statement indicating that the matters “that may be referred to the…Commission are limited to matters notified in this dispute notice…”. By the Application, the plaintiff applied to the Commission to have this dispute resolved.

The medical assessment of the plaintiff

9. A delegate of the Commission referred the plaintiff’s claims to medical assessors for assessment.

10. The medical dispute relating to the plaintiff’s impairment resulting from the “[p]sychiatric/psychological disorder” was referred to Medical Assessor Dr Douglas Andrews.

11. For this dispute, Medical Assessor Andrews issued a Medical Assessment Certificate on 24 August 2022. The essential conclusion reached by him was that, although the plaintiff had severe symptoms “across several domains with significant impairment”, she did not have:

“a primary psychiatric disorder. Her impairment is due to diagnoses that must be excluded in assessing impairment from a psychiatric disorder”.

Thus, Medical Assessor Andrews held that “an assessment of impairment is unwarranted”.

12. The medical dispute relating to the plaintiff’s impairment resulting from the physical injuries (described in the amended referral as affecting the cervical spine, left upper extremity (shoulder), skin and nervous system) was referred to medical assessors Dr Tim Anderson (a consultant occupational physician, as lead assessor) and Dr Peter Spittaler (a neurosurgeon, as non-lead assessor). Medical Assessor Spittaler’s assessment was confined to the “nervous system”.

13. For this dispute, Medical Assessor Anderson issued a Consolidated Medical Assessment Certificate on 24 August 2022 (the consolidated certificate combined the assessment that he undertook with the one undertaken by Medical Assessor Spittaler). The certificate assessed the plaintiff as having a 12% WPI. After applying some deductions, the WPI was assessed to be: 7% (cervical spine), 4% (left upper extremity (shoulder)) and 1% (scarring). In relation to the “nervous system”, the certificate recorded: “[n]ot able to be assessed”. Given the assessment of the plaintiff’s “nervous system” has particular significance in these proceedings, an explanation of Medical Assessor Spittaler’s finding and certification is appropriate.

14. Medical Assessor Spittaler noted in the Medical Assessment Certificate that the “injury which is the concern of this assessment is a traumatic brain injury”. He identified the “requirements to assess traumatic brain injury” to be those referred to in paragraph 5.9 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth Edition, 2021; ‘the Guidelines’), which he summarised as requiring a need for “evidence of a severe impact to the head, or that the injury involved a high-energy impact”. Further, he determined that the clinical assessment criteria “must include at least one of the following” – namely, “abnormalities in the Glasgow Coma Scale (‘GCS’) Score”, “medically verified…post-traumatic amnesia”, or “intracranial pathology [evident] on [a] CT or MRI [scan]”.

15. Medical Assessor Spittaler attempted to undertake his assessment by reference to these criteria. He was “unable to assess the [plaintiff] as having sustained a significant traumatic brain injury” according to the Guidelines, given the absence of evidence related to each criterion.

The 2023 appeal to the Appeal Panel

16. The plaintiff applied to the Commission to appeal against the decisions of Medical Assessor Andrews and Medical Assessor Spittaler. She argued, in each respect, that the assessment was “made on the basis of incorrect criteria” and/or that the “medical assessment certificate contain[ed] a demonstrable error”. These complaints reflect the language of s 327 of the WIM Act. That section prescribes the permitted grounds of appeal from a medical assessor to an appeal panel.

17. By amended decision dated 21 December 2022, a delegate of the Commission referred the plaintiff’s appeal concerning both assessments to a medical appeal panel (‘the 2023 Appeal Panel’) for determination.

The decision of the 2023 Appeal Panel

18. The 2023 Appeal Panel was constituted by Jane Peacock (member) and Dr Michael Hong and Dr Michael Davies (medical assessors). Put simply, on 23 May, the 2023 Appeal Panel confirmed the assessment by Medical Assessor Spittaler but revoked the assessment by Medical Assessor Andrews. It issued a new Medical Assessment Certificate that certified the plaintiff as suffering from a 9% WPI in respect of the “psychological” condition – that being a primary, not secondary, psychological injury.

19. Following the new Medical Assessment Certificate, the Commission, by determination dated 27 June 2023:

1. ordered the first defendant to pay the plaintiff compensation (as lump sum compensation, under s 66 of the WCA) in respect of a 12% WPI “resulting from injury to the cervical spine, left upper extremity (shoulder) and scarring (TEMSKI) on 15 June 2018”;

2. determined that the plaintiff suffered a “0% permanent impairment resulting from injury to the nervous system”, such that she had “no entitlement to lump sum compensation resulting from injury to the nervous system”; and

3. determined that the plaintiff had a “9% permanent impairment resulting from psychological injury on 15 June 2018” but that, notwithstanding, she had “no entitlement to lump sum compensation resulting from psychological injury”. In this last respect, the Commission noted that there was no entitlement to compensation because lump sum compensation for psychological injury is not payable “unless the degree of permanent impairment from the primary psychological injury is at least 15%”: s 65A(3) of the WCA.

The application for judicial review

20. The plaintiff, being dissatisfied with the decision of the 2023 Appeal Panel, filed a summons in this Court on 14 July 2023.

21. The plaintiff succeeded in having the 2023 Appeal Panel’s decision quashed: see Tagg v Racing New South Wales [2023] NSWSC 1547 (‘Tagg No 1’). In accordance with the orders made, the matter was remitted to the Commission to be dealt with according to law by a differently constituted appeal panel.

22. Upon remitter, a delegate of the Commission determined that two new Appeal Panels would be “constituted to determine the matter according to law” pursuant to s 328(1) of the WIM Act, with both panels sharing a common Commission member, Marshal Douglas.

23. Thus, the panel determining the appeal (‘the first Appeal Panel’) from the Medical Assessment Certificate of Medical Assessor Spittaler comprised of Marshal Douglas (member) and Dr Ross Mellick and Dr Mark Burns (medical assessors). The panel determining the appeal (‘the second Appeal Panel’) from the Medical Assessment Certificate of Medical Assessor Andrews was comprised of Marshal Douglas (member) and Dr Graham Blom and Professor Nicholas Glozier (medical assessors).

24. This bifurcation of the appeal procedure is relevant to ground 7 of the amended summons (that is, where the plaintiff argued, inter alia, that the reasons of the Appeal Panels were required to be consistent, but were not).

The decision of the first Appeal Panel dated 12 August 2024: the “nervous system”

25. This decision dealt with the plaintiff’s challenge to the Medical Assessment Certificate issued by Medical Assessor Spittaler. Although it will be necessary to return to some of the detail of the first Appeal Panel’s reasons to deal with the grounds raised in the plaintiff’s amended summons, it is presently sufficient to summarise the key conclusions reached.

26. The first Appeal Panel noted that Medical Assessor Spittaler “did not assess the medical disputes that were referred to him” because he considered that the plaintiff “did not meet the criteria of paragraph 5.9 of the Guidelines” (see [14], above) (Appeal Panel reasons at [21]). The first Appeal Panel also noted that, irrespective of whether the plaintiff met the criteria in paragraph 5.9, the Medical Assessment Certificate nevertheless contained a demonstrable error, identified as follows (Appeal Panel reasons at [26]):

“…Medical Assessor Spittaler did not anywhere in the MAC say that he had assessed the [plaintiff] had [sic] 0% WPI from her injury. Rather, he said that he was unable to assess the degree of her permanent impairment from her injury. He took one necessary step in the process, in that he considered whether in accordance with paragraph 5.9 of the Guidelines the [plaintiff] met the criteria to be rated under sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f of AMA5, but then did not take the next step and rate the [plaintiff’s] impairment by reference to those sections. Further, he did not consider section 13.3b of AMA5”.

27. Having considered the decision in Tagg No 1, the first Appeal Panel noted (Appeal Panel reasons at [29]):

“that paragraph 5.9 requires, prior to making an assessment of impairment by reference to sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f of AMA5, that at least one of the three criteria enumerated by bullet points within the paragraph exist…paragraph 5.9 when properly read does not affect section 13.3b of AMA5…”.

28. The first Appeal Panel considered that, as Medical Assessor Spittaler “did not make an assessment of the [plaintiff’s] permanent impairment from her injury”, it followed that the Medical Assessment Certificate did not “contain an assessment of the key medical dispute that was referred” for assessment and that the certificate contained a demonstrable error (Appeal Panel reasons at [39]-[40]).

29. The first Appeal Panel considered that it required “further clinical data” to enable it to undertake an assessment of the plaintiff’s permanent impairment. Arrangements were made for the plaintiff to be examined by Medical Assessor Mellick for that purpose. Having conducted that examination, Medical Assessor Mellick provided a report to the first Appeal Panel, which appears to be set out in full at [41] of the first Appeal Panel reasons.

30. Put simply, in that report, Medical Assessor Mellick expressed the opinion that the plaintiff was “not amnesic for the event causing the fall and was not amnesic because of the fall”; that, had there been a test conducted at the time of the fall, the GCS score “would more likely than not have…[been] 4, 5 and 6 as she had done [sic] after she had been admitted to the Wyong [H]ospital” (that is, an overall GCS score of 15); that if amnesia was present “at some time in the past it was not organically determined because of [the] physical consequences of brain injury but due to psychologically based causes”; that the plaintiff did not have true epilepsy but, rather, pseudo seizures; and that those seizures “could not have arisen because of a brain injury” but “should be regarded to be psychologically determined”. Accordingly, Medical Assessor Mellick expressed the opinion that the “requirements of Clause 5.9…are not satisfied and no permanent whole person impairment is assessable because of the injury which occurred on 15.6.18”.

31. The first Appeal Panel resolved to adopt the history provided to Medical Assessor Mellick, as well as the findings that he made upon clinical examination of the plaintiff (Appeal Panel reasons at [42]). It then made the following dispositive findings and conclusions:

“43. The Appeal Panel agrees with what Medical Assessor Mellick advised in his report that immediately after the [plaintiff] fell from the horse on 15 June 2018 if a Glasgow Coma Score had then been tested she would have scored 15, comprising eyes 4, verbal 5, and motor 6. That is the same score as when it was tested when the [plaintiff] was admitted to Wyong Hospital.

44. The Appeal Panel also considers, based on the history Medical Assessor Mellick recorded in his report to the Appeal Panel, that there is no significantly medically verified duration of post-traumatic amnesia due to a brain injury. Any amnesia the [plaintiff] has experienced does not have an organic base, that is it is not due to a physical injury, and specifically her brain injury.

45. The CT scan of the [plaintiff’s] brain, which was done on 15 June 2018, and the MRI scan of her brain done on 20 September 2018 do not reveal any intercranial pathology. There is consequently no CT scan or MRI evidence confirming significant intercranial pathology consequent upon the [plaintiff’s] brain injury.

46. Given that, by reference to the criteria of sections 13.3a, 13.c, 13.3d, 13.3e and 13.3f of AMA5 the [plaintiff’s] permanent impairment relating to her nervous system as a consequence of her injury is assessed as 0% WPI”.

32. In relation to episodic neurologic impairment, the first Appeal Panel noted that, whilst Medical Assessor Mellick did not refer to s 13.3b of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fifth Edition, 2001; ‘AMA5’), it nevertheless proposed to do so. It considered that the disturbances that the plaintiff “experiences in her consciousness and awareness and arousal function and her disorders of communication are due to her pseudo seizures and are not the result of her brain injury” (Appeal Panel reasons at [47]). Accordingly, the first Appeal Panel concluded that the plaintiff did not “have an episodic neurological impairment that can be rated under section 13.3b of AMA5” and that her permanent impairment “from her injury is assessed, by reference to the criteria of section 13.3b of AMA5, as also 0% WPI” (Appeal Panel reasons at [47]).

33. The first Appeal Panel, having corrected the demonstrable error it identified in the Medical Assessment Certificate, assessed “the degree of the [plaintiff’s] permanent impairment relating to her nervous system from her injury on 15 June 2018 as 0%” (Appeal Panel reasons at [48]).

34. The first Appeal Panel revoked the Medical Assessment Certificate dated 24 August 2022 and issued a new one, dated 12 August 2024, in the terms identified.

The decision of the second Appeal Panel dated 13 September 2024: the psychological/psychiatric disorder

35. The second Appeal Panel dealt with the plaintiff’s challenge to the Medical Assessment Certificate issued by Medical Assessor Andrews. Again, as with the first Appeal Panel, it will be necessary to return to some of the detail of the second Appeal Panel’s findings, conclusions and reasons to deal with the plaintiff’s grounds of review, however, it is presently sufficient to summarise some key conclusions reached by the second Appeal Panel.

36. The second Appeal Panel noted that Medical Assessor Andrews diagnosed the plaintiff, by reference to the criteria of the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition, 2013; ‘DSM-5’), as suffering “from three psychiatric disorders, namely somatic symptom disorder, persistent depressive disorder with anxious distress, and ADHD” (Appeal Panel reasons at [48]). In relation to the “somatic symptom disorder”, the second Appeal Panel also noted that Medical Assessor Andrews was correct to omit any impairment that arises from that condition in his assessment of the degree of permanent impairment, given that cl 11.4 of the Guidelines excludes rating and impairment arising from such a disorder (Appeal Panel reasons at [49]).

37. However, the second Appeal Panel concluded that Medical Assessor Andrews made two demonstrable errors.

38. The first demonstrable error was finding that the plaintiff did not have a primary psychiatric disorder but, rather, a secondary psychological injury (identified as the plaintiff’s persistent depressive disorder with anxious distress). That finding, by operation of s 65A(1) of the WCA, prevented compensation from being payable for any permanent impairment that results from a secondary psychological injury . The second Appeal Panel concluded that this finding was erroneous because neither party had contended that there was a “secondary psychological injury”, with the consequence that it was (Appeal Panel reasons at [52]):

“…not part of the Medical Assessor’s task to make any findings or conclusions regarding whether the [plaintiff] suffered a secondary psychological injury. If there had been any dispute between the parties regarding that, then that was a matter for the Commission to determine, but to repeat there was no such dispute”.

39. The second demonstrable error was that Medical Assessor Andrews “was also wrong not to assess the impairment the [plaintiff] had from her ADHD” (Appeal Panel reasons at [54]). Although not expressly addressed by the second Appeal Panel, this demonstrable error was the same as the first demonstrable error – namely, treating this disorder as a secondary psychological injury.

40. The second Appeal Panel considered that it would need “further clinical data” to correct the errors. Arrangements were made for the plaintiff to be re-examined by one of the second Appeal Panel members – Medical Assessor Glozier – to obtain that data (Appeal Panel reasons at [43]-[44]). Medical Assessor Glozier provided a report to the second Appeal Panel thereafter, which appears to be set out in in its entirety in the reasons of the second Appeal Panel (from [55]).

41. The second Appeal Panel resolved to adopt the history provided to Medical Assessor Glozier, as well as the findings that he made upon clinical examination of the plaintiff (Appeal Panel reasons at [56]). The second Appeal Panel thus found that the plaintiff’s psychological injury comprised of “a somatic symptom disorder,…a chronic adjustment disorder with anxiety and an exacerbation of a pre-existing attention deficit disorder” (Appeal Panel reasons at [56]).

42. The second Appeal Panel then addressed the plaintiff’s impairment in the Psychiatric Impairment Rating Scale (‘PIRS’) categories based upon the plaintiff’s impairment and symptoms “from her adjustment disorder with anxiety and her attention deficit disorder” – these being the “psychiatric disorders she has that the Guidelines permit to be rated by reference to the PIRS to establish the degree of her permanent impairment from her injury” (Appeal Panel reasons at [57]). The conclusion on the plaintiff’s permanent impairment was expressed as follows (Appeal Panel reasons at [67]):

“The Appeal Panel’s Class ratings of the [plaintiff’s] impairment in the several PIRS categories in ascending order are: 2, 2, 2, 2, 3, 4. The medium [sic] of those scores is 2. The aggregate is 15. In accordance with Table 11.7, that correlates with an 8% WPI”.

43. The second Appeal Panel then considered that the plaintiff had a “pre-existing attention deficit disorder” that “contributes a proportion of her permanent impairment from her injury in that it affects some aspects of her self-care and personal hygiene, her concentration, persistence and pace and her capacity for employability”. It made a “deduction of 10% in accordance with s 323(1) of the WIM Act to the permanent impairment it ha[d] assessed” (Appeal Panel reasons at [68]).

44. The second Appeal Panel, therefore, revoked the Medical Assessment Certificate issued on 24 August 2022 that certified the plaintiff’s WPI for her “psychological/psychiatric disorder”, after making allowance for the proportion of permanent impairment due to the pre-existing attention deficit disorder, of 7% WPI.

The statutory background: the WIM Act

45. The grounds of review allege multiple (jurisdictional) errors in connection with the way that both Appeal Panels determined the plaintiff’s claim for permanent impairment compensation.

46. As later explained in more detail, the grounds include a contention that the application of the Guidelines for the evaluation of permanent impairment and the AMA5 (which are largely adopted by those Guidelines) by the Appeal Panels was flawed. By way of further example, the grounds also include a contention that the Appeal Panels found that there was no “nervous system” injury when the existence of that injury had already been admitted and was not part of the medical dispute that had been referred to them, contrary to ss 319 and 321 of the WIM Act.

47. Given the wide-ranging nature of the alleged errors that the plaintiff argues were committed by the Appeal Panels, it is necessary to identify the detail of the statutory scheme relevant to the assessment of the plaintiff’s claim.

Injury causing permanent impairment

48. Where a worker suffers an injury that results in a degree of permanent impairment there may be, in addition to any other compensation payable, an entitlement to compensation for that permanent impairment: s 66 of the WCA.

49. The degree of permanent impairment that results from an injury is assessed in accordance with s 65 of the WCA and Chapter 7, Part 7 of the WIM Act. As earlier noted at [19](3), for permanent impairment compensation to be payable in respect of a primary psychological injury (the nature of this plaintiff's injury) “the degree of permanent impairment resulting from the primary psychological injury” must be at least 15%: s 65A(3) of the WCA.

Medical assessment and medical disputes

50. Chapter 7, Part 7 of the WIM Act deals with medical assessment and medical disputes. A medical dispute “has the meaning given by section 319”: s 4(1) of the WIM Act. Relevantly here, by s 319 of the WIM Act, “medical dispute” means “a dispute about” the following:

(c)  the degree of permanent impairment of the worker as a result of an injury,

(d)  whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(e) …

(f)  whether impairment is permanent,

(g)  whether the degree of permanent impairment of the injured worker is fully ascertainable.

51. The medical dispute arising may be referred to a medical assessor for medical assessment: s 321(1)-(2) of the WIM Act. A medical assessor “means a person appointed under the Personal Injury Commission Act 2020 [(NSW)] as a medical assessor for the purposes of this Act”: s 4(1) of the WIM Act.

52. Here, the medical dispute was about the plaintiff’s degree of permanent impairment resulting from her physical and psychological injuries and the referrals to the medical assessors identified the medical dispute as involving the matters or questions identified in ss 319(c), (d), (f) and (g) of the WIM Act.

Medical disputes: assessment of impairment

53. The assessment of the degree of permanent impairment of an injured worker is to be in accordance with the Guidelines: s 322(1) of the WIM Act. That section provides that:

(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.

54. The Guidelines are issued under s 376(1)(a) of the WIM Act (see also s 4(1) of the WIM Act and the definition of ‘Workers Compensation Guidelines’ contained therein). The relevant parts of the Guidelines are addressed in [58]ff, below.

55. Reference should also be made to s 323 of the WIM Act – a section that deals with deductions for any proportion of impairment due to a “previous injury or pre-existing condition or abnormality” (the application of this provision is subject to challenge by the plaintiff, by grounds 3 and 4 of the amended summons: see [151]ff, below). Relevantly, that section provides:

323 Deduction for previous injury or pre-existing condition or abnormality

(1)  In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

(2)  If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.

(3)  The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.

(4) …

(5) …

Medical disputes: medical assessment

56. A “medical assessor to whom a medical dispute is referred is to give a certificate…as to the matters referred for assessment”: s 325(1) of the WIM Act. The certificate is to certify the assessment, and set out the reasons for the assessment and the details and facts on which the assessment is based: s 325(2).

57. Section 326 deals with the status of a medical certificate issued under s 325(1). It provides:

326 Status of medical assessments

(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—

(a) the degree of permanent impairment of the worker as a result of an injury,

(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

(c) the nature and extent of loss of hearing suffered by a worker,

(d) whether impairment is permanent,

(e) whether the degree of permanent impairment is fully ascertainable.

(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.

The Guidelines

58. The Guidelines deal with the evaluation of permanent impairment. They adopt AMA5 “in most cases”: cl 1.1. An exception is in relation to psychiatric and psychological disorders: cl 1.10. In relation to disorders of those kinds, the Guidelines “contain a substitute chapter on the assessment of psychiatric and psychological disorders (Chapter 11) which was written by a group of Australian psychiatrists”: cl 1.11.

59. Here, the Appeal Panels were addressing appeals from assessments made by medical assessors that evaluated the plaintiff’s permanent impairments, classifiable as impairments to the plaintiff’s nervous system and impairments from a psychiatric/psychological disorder.

Assessment of permanent impairment of the nervous system

60. The parties accepted that the assessment of permanent impairment of the plaintiff’s nervous system was to be undertaken in accordance with cl 5.9 of the Guidelines and cl 13.3b of AMA5. The description “nervous system” is a description used by the Guidelines, particularly in Chapter 5. The Guidelines there refer to Chapter 13 of AMA5, which is headed: “[t]he central and peripheral nervous system”. Broadly, and relevantly here, they provide the criteria for the evaluation of impairment due to “dysfunction of the brain” (AMA5, p 305) or, as is described in cl 5.9 of the Guidelines, “[f]or traumatic brain injury”.

Assessment of permanent impairment due to a psychiatric/psychological disorder

61. The parties also accepted that the assessment of permanent impairment due to a psychiatric/psychological disorder was to be undertaken in accordance with Chapter 11 of the Guidelines, which is headed: “[p]sychiatric and psychological disorders”.

62. The degree of permanent impairment of a psychiatric/psychological injury is determined in accordance with the PIRS. The PIRS assesses the behavioural consequences of psychiatric disorders on six scales which evaluate functional impairment, by using class descriptors ranging from 1-5 in accordance with severity: cll 11.11 and 11.12. The areas cover activities of daily living (tables 11.1-11.4), “concentration, persistence and pace” (table 11.5) and “employability” (table 11.6).

63. The “scales are fixed and are treated by the Guidelines as distinct from each other”: Ballas v Department of Education(State of New South Wales) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [92] (‘Ballas’). A medical assessor, in order to assess the permanent impairment, “must specify the ‘class’ [that] he or she assigns to each ‘scale’ and give his or her reasons for doing so”: Ballas at [92].

64. Within each scale are activities, or conduct, relevant to assessing functional impairment. The activities or conduct described are not exhaustive, but are “examples only”: cl 11.12; Jenkins v Ambulance Serviceof New South Wales [2015] NSWSC 633 at [57]-[65] (‘Jenkins’); Ferguson v State of New South Wales & Ors [2017] NSWSC 887 at [25].

65. The rating of impairment using the PIRS is a two-step procedure, which involves the determination of the median class score and, then, calculation of the aggregate score: cl 11.13. Once the aggregate score is reached, it is converted to a percentage score using the conversion table: table 11.7, cl 11.18. The conversion table “was developed to calculate the percentage impairment based on the aggregate and median scores”: cl 11.19.

66. To measure the impairment caused by the work-related injury, the medical assessor “must measure the proportion of WPI due to a pre-existing condition” – a measurement that “is calculated using the same method for calculating current impairment level”. The “pre-existing WPI% is subtracted from their current level, to obtain the percentage of impairment directly attributable to the work-related injury”: cl 11.10. That clause also provides that, if “the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10^th of the assessed WPI”.

Medical disputes: appeals

67. Section 327 of the WIM Act deals with appeals against medical assessments. 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”: s 327(1).

68. Section 327(2) makes provision for what is “appealable” under s 327(1):

A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

69. Section 327(3) of the WIM Act identifies the four permitted grounds of appeal:

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 [plaintiff] 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.

70. The first two grounds (ss 327(3)(a) and (b)) have been described as “remedial grounds”, whereas the second two (ss 327(3)(c) and (d)) have been described as “error-based grounds”: Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [61].

71. Here, as earlier noted, the grounds of appeal, as advanced by the plaintiff before the Appeal Panels, were confined to ss 327(3)(c) and (d) of the WIM Act – namely, an assessment made on the basis of incorrect criteria and a medical assessment certificate that contained a demonstrable error.

72. An appeal is made by application to the President of the Commission and is not to proceed unless the President (or, relevantly here, his delegate) is satisfied that, on the face of the application and any submissions, “at least one of the grounds for appeal specified” in s 327(3) is “made out”: s 327(4). That occurred here: see [17], above.

73. An appeal against a medical assessment is to be heard by an appeal panel constituted by two medical practitioners and one arbitrator: s 328(1) of the WIM Act. 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”: s 328(2) of the WIM Act.

The plaintiff’s grounds of review: an overview

74. By the amended summons filed 7 April 2025, the plaintiff advances eight grounds of review.

75. Grounds 1, 5, 6 and 8 relate to the medical assessment of the plaintiff’s traumatic brain injury by the first Appeal Panel contained in their decision dated 12 August 2024.

76. By ground 1, the plaintiff argues that the first Appeal Panel committed jurisdictional error by misapplying the criteria for the assessment of the permanent impairment resulting from that injury – being cl 5.9 of the Guidelines and cl 13.3b of AMA5.

74. By grounds 5 and 6 (which were corollaries to ground 1), the plaintiff argues that the first Appeal Panel also failed to assess the plaintiff’s whole person impairment resulting from her traumatic brain injury (ground 5) and, in doing so, failed to correct the error of Medical Assessor Spittaler (ground 6).

75. By ground 8, the plaintiff argues that the first Appeal Panel constructively failed to exercise jurisdiction by finding that the plaintiff’s pseudo seizures did not relate to her traumatic brain injury and, having so found, concluding that the plaintiff had no compensable permanent impairment. The plaintiff’s argument was that the effect of the finding was to determine that there was no “compensable brain injury” in circumstances where this was not part of the medical dispute referred to it.

76. Grounds 2, 3 and 4 relate to the medical assessment of the plaintiff’s psychiatric/psychological disorder by the second Appeal Panel, contained in their decision dated 13 September 2024.

77. By ground 7, the plaintiff argues that the reasons given by both Appeal Panels were legally inadequate.

78. Each of the grounds were argued to constitute jurisdictional errors (except for ground 7, which was argued to amount to an error of law on the face of the record). The first defendant did not contend for the alleged errors to be characterised to the contrary, but nonetheless argued that they were not made out.

79. It is convenient to deal with the grounds in the order and groupings identified above.

Ground 1: failure to assess the plaintiff’s WPI in accordance with the Guidelines

The plaintiff’s arguments: introduction

83. By this ground of review, the plaintiff argues that the first Appeal Panel committed jurisdictional error by failing to assess the plaintiff’s WPI in accordance with the Guidelines. The plaintiff’s submissions narrow the complaint to the first Appeal Panel’s decision dated 12 August 2024, that being the decision that involved the assessment of the plaintiff’s traumatic brain injury (plaintiff’s submissions at [29] and [39]).

84. The plaintiff, in her written submissions, advanced two arguments under this ground to demonstrate that the permanent impairment assessment of the plaintiff’s nervous system was legally flawed.

85. The first argument related to cl 5.9 of the Guidelines, and how the first Appeal Panel dealt with parts of that clause – namely, the GCS score and amnesia (plaintiff’s submissions at [36]-[37]). The broad complaint underpinning the argument directed to those matters was nevertheless the same: that the misapplication by the first Appeal Panel rested on an approach that curtailed the time over which they assessed whether these features were present, contrary to the terms of cl 5.9 of the Guidelines.

86. The second argument related to cl 13.3b of AMA5 and how the first Appeal Panel dealt with a discrete aspect of that clause involving the pseudo seizures. The broad complaint that appeared to underpin this argument was that the particular clause was misapplied.

87. There is, in my view, no substance to any of the plaintiff’s arguments. The ground of review should, therefore, be dismissed. My reasons for this conclusion follow.

Misapplication of cl 5.9 of the Guidelines

The plaintiff’s arguments

88. The plaintiff’s argument concerning the purported misapplication of cl 5.9 was as follows (emphasis in original; plaintiff’s submissions at [36]):

“Dr Mellick’s focus was narrower that [sic] what the statute required (the statute in the form of clause 5.9) because he found, speaking of the immediate aftermath of the accident, “She was not confused and acted positively and purposefully.” And then concluded that “It is accordingly clear that Ms Tagg was not amnesic for the event causing the fall and was not amnesic because of the fall when first contact was made by her husband and his companion at the site of the fall.”. [sic] She was still suffering seizures when examined by Dr Anderson and other medical specialists”.

89. It should be noted that, although this specific written argument was directed only to amnesia (and despite its ultimate reference to “seizures”), it was made clear during oral submissions that this argument also extended to the GCS score. Thus, the nub of the plaintiff’s argument was that Medical Assessor Mellick – and, necessarily, the first Appeal Panel, given it adopted the totality of his report – misapplied cl 5.9 by adopting an erroneously narrow “focus”: that is, rather than being an open-ended inquiry, the focus was upon the immediate aftermath of the accident (plaintiff’s submissions at [36]).

90. The first defendant, whilst not contesting that a misapplication of cl 5.9 of the Guidelines would amount to jurisdictional error, did, however, contest the existence of the alleged errors argued by the plaintiff. Its essential submission was that there was an unremarkable and legally correct application of the clause.

91. Before dealing with the substance of the plaintiff’s complaint (set out in [88], above), it is necessary to address the correctness of its starting point – viz., directing the complaint towards the assessment undertaken by Medical Assessor Mellick (and the report he provided to the first Appeal Panel) and, as part of that approach, seeking to buttress the argument by reference to, and by comparison with, what the other medical assessors did.

92. The plaintiff’s starting point is, in my view, misplaced. The assessment of whether error of the kind asserted is established must start with the reasons of the first Appeal Panel and not those of the medical assessor who examined the plaintiff and reported to it (unless, relevantly, those reasons were adopted by the panel). That is not this case, given the first Appeal Panel considered cl 5.9 independently of Medical Assessor Mellick (see the Appeal Panel reasons at [29] and [43]-[46], as extracted at [94]ff, below). Further, to be clear, an assessment of whether error of the kind asserted by the plaintiff exists requires consideration of the reasons of the first Appeal Panel and the terms of cl 5.9 – not a comparative exercise involving the remarks of separate medical assessors assigned to assess impairment for other injuries.

93. In my view, putting the plaintiff’s “starting point” to one side, the first Appeal Panel did not misapply cl 5.9 of the Guidelines, for the reasons that follow.

The reasons of the first Appeal Panel: cl 5.9 of the Guidelines

94. The first Appeal Panel, having regard to the decision in Tagg No 1, initially (and correctly) directed itself to cl 5.9 as follows (Appeal Panel reasons at [29]):

“…This Appeal Panel notes that paragraph 5.9 requires, prior to making an assessment of impairment by reference to sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f of AMA5, that at least one of three criteria enumerated by bullet points within the paragraph exist. Schmidt AJ found that paragraph 5.9 when properly read does not affect section 13.3b of AMA5”.

95. Later, having adopted the “history” obtained by Medical Assessor Mellick in his examination of the plaintiff, as well as “his findings…from his examination”, the first Appeal Panel addressed the requirements of cl 5.9, as follows (Appeal Panel reasons at [43]-[46]):

“43. The Appeal Panel agrees with what Medical Assessor Mellick advised in his report that immediately after the [plaintiff] fell from the horse on 15 June 2018 if a Glasgow Coma Score had then been tested she would have scored 15, comprising eyes 4, verbal 5, and motor 6. That is the same score as when it was tested when the [plaintiff] was admitted to Wyong Hospital.

44. The Appeal Panel also considers, based on the history Medical Assessor Mellick recorded in his report to the Appeal Panel, that there is no significantly medically verified duration of post-traumatic amnesia due to a brain injury. Any amnesia the [plaintiff] has experienced does not have an organic base, that is it is not due to a physical injury, and specifically her brain injury.

45. The CT scan of the [plaintiff’s] brain, which was done on 15 June 2018, and the MRI scan of her brain done on 20 September 2018 do not reveal any intercranial pathology. There is consequently no CT scan or MRI evidence confirming significant intercranial pathology consequent upon the [plaintiff’s] brain injury.

46. Given that, by reference to the criteria of sections 13.3a, 13.c, 13.3d, 13.3e and 13.3f of AMA5 the [plaintiff’s] role permanent impairment relating to her nervous system as a consequence of her injury is assessed as 0% WPI”.

96. Before returning to the plaintiff’s argument that there was a misapplication of cl 5.9 of the Guidelines, two matters should be noted. First, in relation to the GCS score, the plaintiff accepted that a score of 15 demonstrated that there was “no deficit” (plaintiff’s submissions at [35]). That is, the score was normal. Secondly, in relation to each argument raised under this ground, the plaintiff accepted (consistent with what the first Appeal Panel held in its reasons at [29]: see [94], above) that, for there to be an assessable permanent impairment for her brain injury, she needed to satisfy the following part of cl 5.9:

“For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact.

Clinical assessment must include at least one of the following:

• significant medically verified abnormalities in the [GCS] score

• significant medically verified duration of post-traumatic amnesia

• significant intracranial pathology on CT scan or MRI”.

97. The plaintiff’s argument about the GCS score was that the approach of the first Appeal Panel was erroneous because the inquiry it undertook was apparently contrary to the language of cl 5.9 and involved an unnecessary curtailment of the period over which the GCS score was to be considered. It was put in submissions that the focus cannot be confined to “the date of admission, it must be long term because the worker has to have reached [maximum medical improvement]”.

98. The difficulty with the plaintiff’s argument is that it did not engage with the reasons of the first Appeal Panel, as I have set out. Rather, the complaint was premised on what was argued to be the approach taken by Medical Assessor Mellick when he examined the plaintiff – as subsequently reported to the first Appeal Panel.

99. In my view, there is no substance to this argument, and nothing warranting any conclusion that there was a misapplication of the particular part of cl 5.9 relating to the GCS score by the first Appeal Panel. Put simply, and relevantly here, the question for the first Appeal Panel was whether there were “significantly medically verified abnormalities in the…[GCS] score”. That question was correctly identified by the first Appeal Panel in its reasons at [29], and was resolved by it in its reasons at [43]: see [94]-[95], above. Further, there is nothing elsewhere in the reasons to indicate that the first Appeal Panel dealt with the question other than in accordance with the terms of cl 5.9.

100. Whilst it may be observed that the first Appeal Panel, in its reasons at [43], made two factual findings – viz., that if a GCS score had been obtained immediately after the plaintiff fell from the horse, “she would have scored 15” and that that was the score when the plaintiff “was tested when…[she] was admitted to Wyong Hospital” – there is nothing to suggest that the first Appeal Panel confined its consideration only to the time of admission to Wyong Hospital because of some mistaken view about what, permissibly, it could consider.

101. In relation to this last matter, the following should be noted. The plaintiff did not draw attention to any evidence that might explain what the GCS testing involves, nor when it is performed – other than, essentially, in the aftermath of an injury such as the present. Further, the argument contained other assumptions, including that there was other evidence about that testing that revealed a different result and, further, that the other testing and result was ignored by the first Appeal Panel because it had committed the legal error argued by the plaintiff. To the extent that there was any evidence to this broad effect before the first Appeal Panel, the plaintiff did not refer to it, and the argument did not rely on it.

102. The plaintiff’s argument about “amnesia” was to the same overall effect – namely, that the first Appeal Panel unnecessarily curtailed the period over which it considered whether there was a “significant medically verified duration of post-traumatic amnesia”.

103. As with the argument relating to the GCS, there is no substance to this argument, and nothing warranting any conclusion that there was a misapplication of the part of cl 5.9 relating to post-traumatic amnesia. On the contrary, it is apparent from the first Appeal Panel reasons, at [29] and [44], that it correctly directed itself in accordance with the requirements of cl 5.9 in this respect.

104. Having correctly directed itself, there is nothing, in my view, in the way that the first Appeal Panel dealt with the question that was other than in accordance with the terms of cl 5.9. In its reasons at [44], the first Appeal Panel accepted the “history” of Medical Assessor Mellick and concluded that there was “no significantly [sic] medically verified duration of post-traumatic amnesia due to a brain injury”.

105. Separately, when consideration is given to Medical Assessor Mellick’s approach there is, in my view, nothing that demonstrates that it was other than in accordance with the terms of cl 5.9.

106. As to that approach, Medical Assessor Mellick obtained a history from the plaintiff relating to her “recollection” and “memories” of the injury before and after its occurrence (p 8 of the reasons of the Appeal Panel); gave particular consideration to a report from Dr Ron Granot dated 10 March 2021, and the history contained within that report relating to the plaintiff’s “recall” and possible “amnesia”; and, relevantly, concluded that the plaintiff “was not amnesic for the event causing the fall, and was not amnesic because of the fall”. It followed, therefore, that the plaintiff failed to satisfy Medical Assessor Mellick that she sustained post-traumatic amnesia of the kind required.

107. To the extent that some of the plaintiff’s argument relating to the first Appeal Panel’s treatment of “amnesia” drifted into submissions about “seizures”, no argument was directed to the materiality of those symptoms and how (or why) they influence consideration of the presence, or otherwise, of post-traumatic amnesia in the sense described in cl 5.9.

108. Further, to the extent that the plaintiff pointed out that the clinical records from Wyong Hospital referred to “concussion”, and the fact that the hospital failed to carry out the “amnesia test which it had ordered”, they are quintessentially discrete factual matters and do not, in my view, provide a basis upon which to assail the approach of the first Appeal Panel in the way argued.

Misapplication of cl 13.3b of AMA5

The plaintiff’s arguments

109. The second part of the plaintiff’s challenge under this ground of review was the argument that the first Appeal Panel misapplied cl 13.3b of AMA5. The plaintiff’s argument was not altogether clear, but appeared to involve a concern directed to part of the phrase in cl 13.3b of AMA5: “involve syncope or loss of awareness, convulsive disorders, and arousal and sleep disorders” (plaintiff’s submissions at [38]).

110. The plaintiff also raised in her written submissions the fact that, in the second Appeal Panel decision dated 13 September 2024 – that is, after the first Appeal Panel had resolved the medical dispute referred to it – Medical Assessor Glozier obtained a history that the plaintiff curtailed her activity “to reduce her chances of seizures”; that she reported to him “seizures which occur[ed] several times a week”; and that they may be coded with several domains including “attacks or seizures” (p 18 of the Appeal Panel reasons). The factual premise of the submissions relating to this ground was the existence of those seizures, but the materiality of the history secured by Medical Assessor Glozier, particularly given Medical Assessor Mellick accepted the presence of pseudo seizures, was neither developed in submissions, nor apparent.

111. During submissions it was argued that the first Appeal Panel “in truth” failed to apply cl 13.3b by reason “of the focus on the…[GCS score] being 15 because that’s not the scope of that inquiry”. The second part of this submission – that the GCS is not part of cl 13.3b – may be accepted, but the first cannot: the second Appeal Panel correctly applied cl 13.3b of AMA5.

112. Before dealing with the plaintiff’s arguments, three matters should be noted. First, the plaintiff accepted that an assessment of permanent impairment for her nervous system could permissibly occur through cl 5.9 of the Guidelines or by cl 13.3b of AMA5. That is a consequence of what was held in Tagg No 1 at [87]-[90], and was the approach of the first Appeal Panel (Appeal Panel reasons at [29]). Secondly, as earlier noted, the particular “neurological impairment” to be assessed was an “episodic neurological impairment” – namely, the presence of seizures of a non-epileptic type. Thirdly, and as mentioned when introducing the plaintiff’s arguments relating to this clause (see [109], above), her contention involved consideration of a particular part of cl 13.3b of AMA5, underlined as follows:

13.3b Episodic Neurologic Impairments

The Guides rates episodic neurologic impairments that are persistent and permanent. Episodic conditions involve syncope or loss of awareness, convulsive disorders, and arousal and sleep disorders. Episodic indicates more than one occurrence. When these conditions originate from a problem in the nervous system, they should be evaluated according to the guidelines given in this chapter. For similar manifestations that originate in other body systems (eg, cardiovascular, respiratory) and secondarily affect the central nervous system, see the chapter(s) for the originating body system(s).

The reasons of the first Appeal Panel: cl 13.3b of AMA5

113. The plaintiff noted that although Medical Assessor Mellick addressed cl 5.9 of the Guidelines, he did not address cl 13.3b of AMA5.

114. Whilst that may be accepted, it is unimportant, given the first Appeal Panel did so by undertaking the task required, in the following terms (Appeal Panel reasons at [47]):

“Further, based on Medical Assessor Mellick’s report to the Appeal Panel, it is apparent that the disturbances the [plaintiff] experiences in her consciousness and awareness and arousal function and her disorders of communication are due to her pseudo seizures and are not the result of her brain injury. Consequently, she does not have an episodic neurological impairment that can be rated under section 13.3b of AMA5. That is to say any syncope or loss of awareness, compulsive [sic] disorders and arousal and sleep disorders do not result from her brain injury. Consequently, her permanent impairment from her injury is assessed, by reference to the criteria of section 13.3b of AMA5, as also 0% WPI”.

115. It is clear from these reasons that the pseudo seizures (and the disturbances that the plaintiff experiences when they occur) were found to exist, but were “not [regarded as] the result of [the plaintiff’s] brain injury”. It followed, based upon that finding, that the condition did not originate from the nervous system (or any nervous system impairment), with the consequence that “she does not have an episodic neurological impairment that can be rated under section 13.3b of AMA5” (Appeal Panel reasons at [47]).

116. Given the statement of reasons and the substance of the approach by the first Appeal Panel, there is no justification for any conclusion that there was a misapplication of the relevant part of cl 13.3b of AMA5. The approach taken by the first Appeal Panel was orthodox and in conformity with that clause.

115. I also do not accept the complaint that the first Appeal Panel was distracted in its consideration of cl 13.3b in some [unspecified] way given their reference to the GCS score, as the plaintiff argued. The reasons dealing with cl 13.3b of AMA5 make clear that the first Appeal Panel correctly confined its consideration to the language of that clause, without any overlapping consideration of the GCS score.

116. This ground of review should be dismissed.

Grounds 5 and 6: failing to assess the WPI of the traumatic brain injury

119. By these grounds of review, the plaintiff argues that the first Appeal Panel committed jurisdictional error by failing to assess WPI in relation to the traumatic brain injury (ground 5) and by failing to correct the decision of Medical Assessor Spittaler, who similarly failed to carry out that assessment (ground 6).

120. As the first defendant argued, and as the plaintiff accepted, these grounds are no more than corollaries to ground 1. Thus, to illustrate, the plaintiff argued that it “follows from ground 1, that the assessment of 0% WPI is arbitrary and reflects a view, legally not open”, namely, “that there was no traumatic brain injury” (emphasis in original; plaintiff’s submissions at [60]).

121. Given the conclusion that I have reached about ground 1 of the amended summons, these related grounds of review, premised upon the success of that earlier ground, should be dismissed.

Ground 8: the first Appeal Panel purported to determine a question of injury which was not part of the medical dispute referred to it

The plaintiff’s arguments: introduction

122. By this ground of review, the plaintiff argues that the first Appeal Panel, in its consideration of cl 13.3b of AMA5, “purported to determine whether there was a compensable brain injury” when the existence of that injury was neither in dispute, nor referred to it under ss 319 and 321 of the WIM Act (plaintiff’s further written submissions at [7]-[8]). Accordingly, the plaintiff argues that, in purporting to find that there was “no brain injury”, there has been “a constructive failure to exercise jurisdiction” (plaintiff’s further written submissions at [8]).

The reasons of the Appeal Panel

123. The plaintiff argued that the erroneous approach of the first Appeal Panel was evident from its reasons at [47] (set out at [114], above).

124. By reference to this paragraph of the first Appeal Panel’s reasons, the plaintiff argued that the finding that the plaintiff’s pseudo seizures were not attributable to her brain injury amounted, in substance, to a finding about the existence of a brain injury rather than an assessment of permanent impairment resulting from that injury. The plaintiff described this error during submissions as involving an “overreach” by the first Appeal Panel because it involved, so the argument went, the first Appeal Panel determining an issue that was not referred to it under s 319 of the WIM Act.

125. The argument was expressed in the plaintiff’s submissions as follows (plaintiff’s further submissions at [8]):

“…[the first Appeal Panel] effectively purported to determine whether there was a compensable brain injury (a liability issue not in dispute). If symptoms were (additionally) being produced by something else (such as epilepsy) that may well [sic] to the assessment of impairment, but did not relief [sic] the [first Appeal] Panel of actually assessing that impairment”.

Discussion and consideration

126. It may be accepted that, if the first Appeal Panel sought to determine a matter that had not been referred to it, in the way the plaintiff argued, that would involve the first Appeal Panel misunderstanding “the nature of its jurisdiction and, in consequence…misconceiv[ing] its duty” and, thus, amount to a constructive failure to exercise jurisdiction: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41] (‘Yusuf’). I am nevertheless unable to accept that an error of that kind occurred here, as the plaintiff argued, for the following reasons.

127. The WCA and WIM Act recognise that an injury may result in a permanent impairment. Here, the injury sustained by the plaintiff was a brain injury. The medical dispute that was referred to the Appeal Panels required them to determine whether the compensable injuries resulted in a permanent impairment, and to assess any impairment that does so result: s 319(c) of the WIM Act. Relevantly here, in relation to the brain injury, the first Appeal Panel undertook that task by referring to the appropriate criteria for that assessment – namely, cl 5.9 of the Guidelines and cl 13.3b of AMA5.

128. Contrary to what the plaintiff argued, the first Appeal Panel did not make a “no injury” finding in its reasons at [47] and did not, therefore, exceed its mandate. Rather, the finding that it did make and that is subject to challenge is, simply, that the pseudo seizures were “not the result of her brain injury”. This finding was about whether those seizures were related to the brain injury or not. The finding says nothing about the existence of the brain injury, nor did it purport to.

129. Having made that finding, the first Appeal Panel then also found that that condition was not within cl 13.3b of AMA5 (this being the criteria then being considered by them) so as to give rise to an assessable impairment. The first Appeal Panel, having made these findings, then corrected the:

“demonstrable error in the MAC by assessing the degree of the [plaintiff’s] permanent impairment relating to her nervous system from her injury on 15 June 2018 as 0%” (Appeal Panel reasons at [48]).

130. Given the plaintiff’s argument, those reasons are sufficient to dispose of it. Nevertheless, the following two matters should be noted, which serve to confirm the correctness of the approach of the first Appeal Panel.

131. First, the approach accords with the decision in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd (2014) 13 DDCR 156; [2014] NSWCA 264. That decision recognised, by reference to the language of ss 319(c) and (d) of the WIM Act, that those sections adopt “the language of causal connection” – with the consequence that the question of causation is “squarely within the definition of ‘medical dispute’:” at [110]. That is no more or less than what occurred here. Secondly, that the first Appeal Panel correctly approached its task, in accordance with s 319(c) of the WIM Act, is confirmed by the multiple references in the dispositive part of their reasons – namely, that the disturbances experienced by the plaintiff were “not the result of her brain injury”; that the plaintiff’s “permanent impairment from her injury…”; and, by their assessment of the plaintiff’s permanent impairment “relating to her nervous system from her injury on 15 June 2018…” (Appeal Panel reasons at [47]-[48]). These legally correct directions followed on, as the first defendant submitted, from the clear direction that the first Appeal Panel gave itself – identifying its task as assessing the plaintiff’s degree of permanent impairment “from a brain injury she suffered in an incident on 15 June 2018” (Appeal Panel reasons at [1]).

132. Thus, as the first defendant submitted, the first Appeal Panel undertook an assessment of the plaintiff’s permanent impairment, relevant to this ground, in line with cl 13.3b of AMA5 and s 319(c) of the WIM Act that discharged, rather than exceeded, the first Appeal Panel’s jurisdiction.

133. This ground of review should be dismissed.

Ground 2: the second Appeal Panel took into account an irrelevant consideration – the effects of the physical injuries – when determining psychiatric injury

Introduction

134. By this ground of review, the plaintiff argues that the second Appeal Panel committed jurisdictional error by taking into account an apparently irrelevant consideration – the effects of physical disability – when determining psychiatric injury.

135. That error is argued to be demonstrated in one of two ways: first, by the second Appeal Panel’s consideration of the “effects of the physical injury” when determining the psychiatric injury; and, secondly and alternatively, because “the focus has been the pain affects associated with that index physical injury, and not the actual effects of the primary psychological injury” (plaintiff’s submissions at [41]).

136. The arguments made are less than clear and the ground was not addressed during submissions.

The reasons of the second Appeal Panel

137. The plaintiff argued that the error was apparent from the “summary” contained in Medical Assessor Glozier’s report to the second Appeal Panel. The plaintiff relied upon the parts underlined in that summary, as follows:

Summary

[The plaintiff] has marked limitations from her pervasive pain, frequent seizures, intolerance of over-stimulation that aggravates these and a range of reported cognitive complaints arising since her fall.

She has been diagnosed with a functional neurological disorder which is classified within DSM-5 under Section F45, and she certainly meets the criteria for this with multiple symptoms of altered voluntary motor or sensory function with associated distress and impairment. These could also be coded with several domains including weakness[,] paralysis, abnormal movements, attacks or seizures, sensory loss, special sensory symptoms, or just with mixed symptoms. As one of the somatic symptom related disorders, this is specifically excluded from being rateable by the PIRS within Chapter 11.

Neither are we able to rate the marked impairment arising from her chronic pain and the management she does, together with Mick, to limit this and its impact on her.

138. This summary purportedly demonstrates the error, given the second Appeal Panel accepted “the history” obtained by Medical Assessor Glozier and “his descriptions of the [plaintiff’s] current symptoms, his findings from his clinical examination of the [plaintiff] and the diagnoses he made” (Appeal Panel reasons at [56]).

139. The first defendant did not contest that the second Appeal Panel had adopted the summary contained in the report from Medical Assessor Glozier but argued that there was no error in this approach because, put simply, the assessment was in conformity with the Guidelines.

Discussion and consideration

140. In my view, there is no substance to either of the plaintiff’s complaints raised in support of this ground. My reasons for so concluding are as follows.

141. By this ground of review, the plaintiff employed language conventionally used to identify a factor that a decision-maker is bound by law to, relevantly here, not take into account in making the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39; [1986] HCA 40 (‘Peko-Wallsend’).

142. However, a ground that fixes upon the use of relevant (or, as argued here, irrelevant) considerations is essentially concerned with whether the law has been properly applied – it is not a ground “centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts”: Yusuf at [74]. Thus, to establish error giving rise to invalidity, it must be shown that the consideration of the irrelevant material was a consequence of legal error about the function being exercised: Yusuf at [82]. The plaintiff’s submissions were, however, entirely devoid of such analysis. Given the above, it is necessary to commence with them.

143. As earlier noted (see [61]ff, above), the assessment of psychiatric and psychological disorders is governed by Chapter 11 of the Guidelines. Relevantly, any impairments “arising from any of the somatoform disorders…are excluded from this chapter”: cl 11.4. A further limitation is contained within cl 11.5, which provides:

“If pain is present as the result of an organic impairment, it should be assessed as part of the organic condition under the relevant table. This does not constitute part of the assessment of impairment relating to the psychiatric condition. The impairment ratings in the body organ system chapters in AMA5 make allowance for any accompanying pain”.

144. By each clause, pain is thus a relevant consideration. By cl 11.4, “pain” is relevant if its existence arises from any of the disorders excluded from the chapter. By cl 11.5, “pain” is relevant if it is present “as the result of an organic impairment…”.

145. Having set out the statutory scheme, I return to the plaintiff’s argument.

146. The argument fixed upon the summary referring to the plaintiff as having “marked limitations from her pervasive pain…”, and that the “marked impairment arising from her chronic pain” was not able to be “rated”. The argument, as set out in the plaintiff’s submissions at [41], was that Medical Assessor Glozier (and, necessarily, the second Appeal Panel), by “commencing his analysis with the effects of the physical injury” took into account the “irrelevant consideration of, what[,] in effect, has been regarded by them to be a secondary psychological injury” (noting that the meaning of this last phrase was not addressed: it is defined in s 65A(5) of the WCA as meaning “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”).

147. I do not accept that the references in the “summary” signify error in the way argued, or at all – particularly when regard is had to cll 11.4 and 11.5 of the Guidelines, as the first defendant argued.

148. That last clause precludes any assessment of “pain” (if present) resulting from organic impairment. That is, pain referable to an organic impairment is not “part of the assessment of impairment relating to the psychiatric condition. The impairment ratings in the body organ system chapters in AMA5 make allowance for any accompanying pain”: cl 11.5. The existence of pain is, therefore, directly relevant to the assessment of the medical dispute. Medical Assessor Glozier and the second Appeal Panel were required by cl 11.5 of the Guidelines to exclude from the assessment of impairment any pain arising from the plaintiff’s physical injuries. That is what each of them did.

149. Further, and to the same end, the presence of “pain” was also relevant to the application of cl 11.4 of the Guidelines. The plaintiff’s “marked limitations” from the constellation of symptoms recorded was a matter of diagnostic relevance as to whether the plaintiff had the functional neurological disorder. Again, the presence of pain was a relevant (rather than an irrelevant) consideration.

150. This ground of review should be dismissed.

Grounds 3 and 4: the second Appeal Panel failed to take into account “all assessable aspects of psychiatric injury” and failed to apply the PIRS

Introduction

151. By these grounds of review, the plaintiff argued that the second Appeal Panel made various errors when assessing impairment for the “psychiatric/psychological disorder”, including in its application of the PIRS.

152. The plaintiff argued that the erroneous assessment extended across a number of the PIRS scales – namely, self-care and personal hygiene (table 11.1); social and recreational activities (table 11.2); and employability (table 11.6) (plaintiff’s submissions at [44]-[54]). During the hearing, the plaintiff was invited to identify whether, in relation to each ground of review, the alleged error by the second Appeal Panel in their application of the PIRS was evident from the manner in which they addressed one of the relevant scales. The plaintiff accepted that some instances were “good examples” of where the second Appeal Panel fell into the alleged error (or errors) but did not accept that the errors were uniform. It is, thus, necessary to address each of them separately.

153. The plaintiff also argued that the second Appeal Panel erroneously determined the deduction due to pre-existing impairment (plaintiff’s submissions at [55]-[58]). This latter argument was not the subject of a separate ground of review.

154. Before addressing the multiple arguments raised by these grounds, the following observations should be made.

155. First, as earlier noted at [41], the second Appeal Panel found that the plaintiff’s “psychological injury comprises a somatic symptom disorder…, a chronic adjustment disorder with anxiety and an exacerbation of a pre-existing attention deficit disorder”. In relation to the somatic symptom disorder, impairment arising from it was excluded by cl 11.4 of the Guidelines. The plaintiff accepted as much. Secondly, again, as earlier noted (see [61]-[66], above), the assessment of impairment resulting from the plaintiff’s psychiatric/psychological injury is determined in accordance with the PIRS. Despite the broad focus of the plaintiff’s argument being that the second Appeal Panel made various errors in applying the PIRS, the amended summons did not identify the precise errors alleged. Rather, this had to be ascertained (to the extent possible) from the submissions, which themselves did not seek to differentiate at all between grounds 3 and 4. Thirdly, what was not argued should be noted: the plaintiff did not contend that there was an error relating to “conduct” being “wrongly assigned to one scale, when it should have been assigned to another”: Ballas at [94].

The self-care and personal hygiene scale: table 11.1

The plaintiff’s argument

156. The plaintiff noted that she was assessed as class 2 on this scale and, therefore, according to the class description in table 11.1, had a “mild impairment” (plaintiff’s submissions at [47]). Putting to one side any question about the existence of a pre-existing impairment and the deductibility for any impairment of that kind, the plaintiff made the following submission:

“The facts as record[ed] by the [second Appeal Panel] go beyond mere “prompting”. Indeed, she is ‘forced’ to attend nutrition by family members. Class 3 clearly applies, which refers to the need to [sic] prompting and missing meals unless there is intervention (such as by family). On the other hand, class 2 is described as being ‘able to live independently’ – is not the case [sic], on the facts recorded anywhere”.

The reasons of the second Appeal Panel

157. The second Appeal Panel assessed the plaintiff’s impairment by applying the scale for self-care and personal hygiene, as follows (Appeal Panel reasons at [58]-[59]):

“58. For self-care and personal hygiene the Appeal Panel rates the [plaintiff’s] impairment as Class 2. The [plaintiff’s] ADHD and anxiety impair her activity in this domain only mildly. Her ADHD and anxiety do not prevent her from living independently or being unable to look after herself adequately. The [plaintiff], whilst reporting little appetite and being forced to eat, has in fact gained significant weight indicating an adequate nutritional intake. The support that her partner provides her with respect to her self-care and personal hygiene is due entirely to the [plaintiff’s] somatic symptom disorder and the pain from her physical injuries. It is not due to her ADHD and anxiety symptoms.

59. The Appeal Panel considers the [plaintiff’s] impairment in self-care and personal hygiene from her assessable diagnoses reflect a severity of impairment best described by the examples provided in Table 11.1 for a Class 2 impairment, and not those provided in Table 11.1 for a Class 3 impairment. This is because, as just said in the prior paragraph, her adjustment disorder related anxiety symptoms and ADHD result only in mild impairment so that she occasionally is unkempt or fails to manage her personal hygiene, and the support or prompting she needs to attend to her self-care and personal hygiene do not stem from her anxiety from her adjustment disorder or from her attention deficit disorder, but rather her somatic symptom disorder and pain”.

Discussion and consideration

158. It is convenient to commence with ground 4. By this ground, the plaintiff argues that the second Appeal Panel “committed jurisdictional error by failing to apply the criteria” in the PIRS. The plaintiff’s submissions, however, did not engage with the reasons of the second Appeal Panel to demonstrate precisely where this alleged error occurred: the submissions were confined to those advanced in writing (as set out in [156], above).

189. It follows that ground 3, for these reasons, so far as it relates to this aspect of the second Appeal Panel’s decision, should also be dismissed.

Apportionment

The plaintiff’s argument

193. The plaintiff’s next challenge related to the manner with which the second Appeal Panel dealt with the deductibility of any proportion of her impairment due, in short, to any pre-existing condition or abnormality. The plaintiff accepted that, in this respect, s 323 of the WIM Act applied to the determination of this issue, but argued that the second Appeal Panel misapplied it. The plaintiff’s essential argument was that that section, when engaged (as it was in this case) only applies after the PIRS assessment is conducted, whereas the second Appeal Panel erroneously applied it during and after that assessment (plaintiff’s submissions at [58]). The result, the plaintiff argued, was that there was a “double discount”.

194. The plaintiff submitted that the error occurred because the second Appeal Panel’s approach, “in going through the PIRS class attribution process”, was “tainted by frequent refinance [sic] to pre-existing ADHD etc, bringing the class assessments down themselves” (emphasis in original – plaintiff’s submissions at [56]). The plaintiff argued during oral submissions that there was a two-stage calculation process concerning deductions “for pre-existing impairment”, which required an assessment of the totality of the “psychiatric presentation as it is on the day, less whatever may be attributed to pre-existing matters under s 323”.

195. The argument was solely confined to what was described as the plaintiff’s ADHD condition. The plaintiff accepted that this was “a pre-existing condition, albeit aggravated”. The plaintiff argued that the second Appeal Panel’s treatment of that condition was contrary to the terms of s 323 (apparently evident from its reasons at [58], [59] and [60]) albeit that, in each instance, they reflected what was submitted to be an identical error.

The reasons of the second Appeal Panel

196. The challenged paragraphs of the reasons of the second Appeal Panel have been set out elsewhere in this judgment. It is nevertheless convenient, in the present context, to set out the second Appeal Panel reasons at [58]-[59] (which deal with the plaintiff’s rating for self-care and personal hygiene within table 11.1 of the Guidelines) again and to emphasise those parts of the reasons that are argued to reveal the alleged error, by underlining them:

58. For self-care and personal hygiene the Appeal Panel rates the [plaintiff’s] impairment as Class 2. The [plaintiff’s] ADHD and anxiety impair her activity in this domain only mildly. Her ADHD and anxiety do not prevent her from living independently or being unable to look after herself adequately. The [plaintiff], whilst reporting little appetite and being forced to eat, has in fact gained significant weight indicating an adequate nutritional intake. The support that her partner provides her with respect to her self-care and personal hygiene is due entirely to the [plaintiff’s] somatic symptom disorder and the pain from her physical injuries. It is not due to her ADHD and anxiety symptoms.

59. The Appeal Panel considers the [plaintiff’s] impairment in self-care and personal hygiene from her assessable diagnoses reflect a severity of impairment best described by the examples provided in Table 11.1 for a Class 2 impairment, and not those provided in Table 11.1 for a Class 3 impairment. This is because, as just said in the prior paragraph, her adjustment disorder related anxiety symptoms and ADHD result only in mild impairment so that she occasionally is unkempt or fails to manage her personal hygiene, and the support or prompting she needs to attend to her self-care and personal hygiene do not stem from her anxiety from her adjustment disorder or from her attention deficit disorder, but rather her somatic symptom disorder and pain.

Discussion and consideration

197. The plaintiff’s argument was that, after finding and rating the plaintiff’s impairment as class 2 in their reasons at [58], the second Appeal Panel further found that the plaintiff’s “ADHD and anxiety impair her activity in this domain only mildly”. The plaintiff argued that this finding reflected the alleged error by the second Appeal Panel because it referred to the ADHD condition itself, rather than the mere aggravation of that condition. The plaintiff further argued that a “better example” was evident from the second Appeal Panel’s reasons at [59]. In each case, as noted, the parts of the reasons relied upon as demonstrating this error have been underlined.

198. The plaintiff did not rely upon or refer to any authorities dealing with s 323 and/or the relationship between s 323 and cl 11.10 of the Guidelines.

199. In my view, the second Appeal Panel did not commit the error alleged. On the contrary, I consider that it correctly applied s 323 in relation to the plaintiff’s ADHD. I will explain why.

200. The steps required by s 323 were discussed in Cole v Wenaline Pty Ltd [2010] NSWSC 78 (at [29]-[31] and [38]) and in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 (‘Elcheikh’). In Elcheikh, Schmidt J summarised the “steps” involved in applying s 323 as follows (at [126]):

• “Firstly, what the extent of the resulting impairment is.

•   Secondly, whether the pre-existing condition contributed to the impairment.

•   Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition”.

201. The “stepped” approach to s 323 has been applied on a number of occasions: see, for a recent example, Department of Education v Mansfield [2025] NSWSC 325 at [26] and the authorities referred to in that case at [25].

202. The interrelationship between s 323 and cl 11.10 of the Guidelines was also recently summarised by Mitchelmore JA in Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 at [74]-[75] (however, given the way the matter was argued and the confined nature of the error alleged to have arisen, the interplay between s 323 and cl 11.10 does not arise).

203. In my view, and by approaching the reasons in the manner required by the authorities (see [180], above), the second Appeal Panel did not make the alleged error when dealing with the deduction for the plaintiff’s pre-existing condition. Rather, it is clear that the second Appeal Panel assessed and rated the impairment resulting, relevantly here, from the ADHD.

204. For example, in its reasons at [59], the second Appeal Panel said: “…her adjustment disorder related anxiety symptoms and ADHD result only in mild impairment”. In my view, the second Appeal Panel did not, as the plaintiff argued, undertake (or seek to undertake) any form of apportionment due to the applicant’s ADHD, being a pre-existing condition. To the extent that the reasons of the second Appeal Panel reveal that it found that only some of the matters were referable to the compensable condition (rather than arising as a consequence of her somatic symptom disorder, for example), then that approach is, as the first defendant essentially submitted, unremarkable, and has nothing at all to do with the application of s 323 of the WIM Act.

205. That the second Appeal Panel followed the terms of s 323 of the WIM Act is apparent not only from the above, but also from a wider consideration of their reasons and their structure – as I will next explain.

206. The second Appeal Panel, after rating the plaintiff’s impairment using the PIRS, calculated the plaintiff’s WPI at 8% (Appeal Panel reasons at [67]). That is the first step required by s 323. Having assessed that impairment, it then addressed the (accepted) pre-existing condition – her attention deficit disorder – and found that that condition “contributes a proportion of her permanent impairment from her injury in that it affects some aspects of her self-care and personal hygiene, her concentration, persistence and pace and her capacity for employability” (Appeal Panel reasons at [68]). That is the second step required by s 323. The second Appeal Panel then made a finding about the contribution of that pre-existing condition – namely, that it was “impossible to determine with any precision” the proportion the pre-existing condition “contributes to her permanent impairment” and therefore assumed it was “10% in accordance with s 323(2), which assumption is not at odds with the evidence” (Appeal Panel reasons at [68]). That is the third step required by s 323.

207. These further reasons of the second Appeal Panel, therefore, also confirm that it correctly followed the “stepped” approach required by s 323 of the WIM Act when addressing the pre-existing condition.

208. For these reasons, it follows that grounds 3 and 4, both as they relate to this aspect of the second Appeal Panel’s decision and in their entirety, should also be dismissed.

Ground 7: the adequacy of the reasons

Introduction

209. By this ground of review, the plaintiff complains that the Appeal Panels failed to give legally adequate reasons for their decisions. Numerous arguments were advanced. They are summarised for introductory purposes below.

210. The plaintiff’s overarching complaint was that the Appeal Panels failed to consider each other’s reasons before issuing their certificates (plaintiff’s submissions at [68]). The plaintiff, as part of this argument (but also independently of it), sought to demonstrate this error and its materiality by referring to the manner in which the second Appeal Panel dealt with the plaintiff’s seizures. The plaintiff argued that there was an inconsistency or, at the very least, an issue arising, between the reasons of the Appeal Panels in relation to that condition and the finding made that they were due to a somatoform disorder (plaintiff’s submissions at [69]-[71]).

211. The plaintiff also made three particular complaints about the adequacy of the reasons given by the Appeal Panels. The first complaint relates to how the GCS score was addressed by the first Appeal Panel in their assessment of the “nervous system”. The second and third complaints relate to the PIRS and the “attribution of disability to pre-existing psychiatric issues” – complaints directed to the reasons of the second Appeal Panel.

212. It is convenient to first deal with the three particular complaints and, thereafter, the overarching one. Before doing so, it is necessary to outline the principles that inform consideration of this ground of review.

The nature and standard of reasons

213. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (‘Wingfoot’), the High Court set out the following principles that relate to the standard of reasons required of an Appeal Panel (at [47], [54]-[56], footnotes omitted):

“47. …It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions.  The function of a Medical Panel is neither arbitral nor adjudicative:  it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question.  The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. 

…

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 always to 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…

56. …A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no 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”.

214. Four matters should be noted about these general principles. First, they apply to the present statutory scheme: see, for example, Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [42]; Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [45] (‘Lancaster’). Neither party submitted to the contrary. Secondly, a failure to provide legally adequate reasons would be an error of law on the face of the record: Wingfoot at [28]. Thirdly, the adequacy of reasons must be evaluated in the context of what the Appeal Panels were asked to decide: “[n]o mechanical formula can be given for determining what constitutes sufficient reasons, but it is particularly important that a complaint that they are inadequate be assessed against the circumstances of the particular case”: Sydney Trains v Batshon [2021] NSWCA 143 at [48]; Lancaster at [52]. Fourthly, consideration of the adequacy of the reasons of the Appeal Panels must be approached in accordance with the authorities referred to at [180], above.

The reasons of the Appeal Panels: the ‘particular’ complaints

The GCS score

215. The plaintiff argued that Medical Assessor Mellick’s “opinion” that her GCS score “more likely than not” would have been normal – had that testing been performed immediately following the fall – was “speculative” and “contrary to the evidence” (plaintiff’s submissions at [72]). Given the first Appeal Panel essentially adopted his analysis on that issue, the plaintiff argued that the error he made could be attributed to them.

216. I do not accept the plaintiff's complaint, for the following reasons.

217. Putting to one side whether the terms employed are entirely apt for a ground of review directed to the adequacy of the reasons, the opinion expressed by Medical Assessor Mellick was neither “speculative” nor “contrary to the evidence”. The basis for his “opinion” was essentially informed by the fact that: (a) the plaintiff “was not amnesic for the event causing the fall and was not amnesic because of the fall when first contact was made by her husband and his companion at the site of the fall” – a finding based on Medical Assessor Mellick’s assessment of the plaintiff and the history he obtained at that time; and (b) when the GCS test was performed following the plaintiff’s admission to Wyong Hospital, her GCS score was reported as normal – a finding based on the Discharge Summary from that hospital. These reasons clearly and succinctly explain the basis for the finding about the GCS.

218. During submissions, the plaintiff sought to demonstrate, by reference to snippets of evidence scattered through the voluminous material before the Appeal Panels (and this Court), that the evidence referred to was capable of assisting the resolution of the GCS issue.

219. I do not accept this argument. That is because, as the first defendant submitted, whilst it may be accepted that a question about the sufficiency of the reasons could arise if there was significant evidence directly referable to the (presently relevant) criteria in cl 5.9 of the Guidelines that was ignored in a given case, the evidence referred to by the plaintiff was not of that character. For example, the plaintiff drew attention to a letter of referral from the her general practitioner, dated 27 August 2018, which identified the ‘Presenting Problem’ as including “head injury” and “memory loss” and, by way of further example, a report from a neurologist where the plaintiff “self-reported” post-traumatic amnesia.

220. Separately, to the extent that the plaintiff’s submissions and evidentiary references drifted into the area of “amnesia” (albeit without any clear explanation as to their materiality), the first defendant submitted that the same response provided a complete answer to the plaintiff’s submissions. I agree.

221. A further matter warrants emphasis. As the plaintiff conceded during submissions, none of the material referred to during submissions was specifically drawn to the attention of the Appeal Panels or was the subject of any submission to them. In my view, that lends practical reinforcement to the characterisation of the evidence, identified by the plaintiff, that I have made.

222. It follows that, contrary to what the plaintiff argued, there was no insufficiency in the reasons of Medical Assessor Mellick in connection with the manner in which he addressed the GCS score, nor by the first Appeal Panel when it accepted and adopted his findings in its reasons.

The PIRS

223. The plaintiff argued that the reasons of the second Appeal Panel in connection with the way they addressed the PIRS were legally inadequate. The plaintiff’s argument, relevantly, was confined to the following (plaintiff’s submissions at [73]-[74]):

“Particularly in the context of Tagg No 1, and the fact that on the fact of the material, the PIRS scale was not applied to those facts, there has been a further failure to sufficiently expose the path of reasoning in this respect.

The attribution of disability to pre-existing psychiatric issues in determining PIRS classes and the deduction also made for those pre-existing conditions is not explained…”.

224. In my view, this argument is without substance. Contrary to what was argued, the second Appeal Panel made findings relevant to its rating of the plaintiff’s impairment, applied the PIRS to those findings, and sufficiently explained the basis for doing so. Given the broadly expressed argument, I will explain my reasons concisely.

225. The second Appeal Panel rated the plaintiff’s impairment across the PIRS scales and made findings in connection with each of them (Appeal Panel reasons at [57]-[66]). In doing so, it made findings directed to assessing the appropriate class of impairment across each of the scales and explained, briefly and sufficiently, why it made those findings. Having completed that task, the second Appeal Panel then assessed the plaintiff’s overall impairment in accordance with table 11.7 (Appeal Panel reasons at [67]), gave consideration to s 323 and the need to deduct a proportion of that impairment (given the contribution by the pre-existing disorder) and made an appropriate deduction (Appeal Panel reasons at [68]). Thus, contrary to what the plaintiff argued, the PIRS was applied to the facts and the reasons of the second Appeal Panel, and clearly identify its path of reasoning.

The pre-existing disorder

226. The plaintiff argued that the reasons of the second Appeal Panel were legally inadequate in relation to its assessment of the plaintiff’s pre-existing disorder. The plaintiff’s argument, relevantly, was confined to the following (plaintiff’s submissions at [74]):

“The attribution of disability to pre-existing psychiatric issues in determining PIRS classes and the deduction also made for those pre-existing conditions is not explained. The apportionment of physical versus psychiatric causation (the extent the former is relevant at all) in the PIRS assessment is not explained adequately or at all”.

227. This argument is not altogether clear, and the plaintiff did not develop it during submissions.

228. To the extent that the argument rested upon the contention that the second Appeal Panel, in the process of its application of the PIRS, deducted from that rating any impairment referable to her pre-existing disorder as well as after its application of the PIRS (with the consequence that there was a “double discount”), I have previously concluded that no error of that kind occurred when dealing with ground 3. Further, the reasons that the second Appeal Panel gave when determining PIRS classes and deductions were more than sufficient, as I have explained both when dealing with ground 3 and in [225], above.

229. For the above reasons, ground 7, so far as it relates to the alleged inadequacy of the reasons of the Appeal Panels for the particular complaints, should be dismissed.

The reasons of the second Appeal Panel: the pain and the seizures

230. The plaintiff also argued that the Appeal Panels “should have considered each other’s reasons before issuing their certificate” (plaintiff’s submissions at [68]) and that, by not doing so, there was an inconsistency between the decisions relating to her seizures. That issue, the plaintiff argued, required explanation and resolution by the second Appeal Panel as to why those seizures were not attributable to the compensable injuries – presumably, the chronic adjustment disorder with anxiety (plaintiff’s submissions at [69]-[71]). This argument was only directed to the second Appeal Panel during submissions, and contended that the second Appeal Panel needed to address and explain why there was no nexus between the seizures and the compensable psychological injuries.

231. It is convenient to address, albeit briefly, the plaintiff’s “structural” argument; namely, that there was an obligation on the part of the second Appeal Panel to “deal with” the reasons of the first Appeal Panel. The plaintiff’s essential argument was that this obligation was implied because of the division of functions between the Appeal Panels. The statutory footing and basis for that implication was not fully addressed during submissions. It may be assumed that there is such an obligation, albeit that the content of that obligation is protean rather than fixed: logic, fairness and consistency in decision-making, in my view, all favour such a conclusion. But, as I have noted, the precise footing for imposing such obligation was not fully argued and is not without difficulty. In the end, it is unnecessary to determine the basis for the obligation given the matter said to give rise to the inconsistency (or issue) – essentially, the presence of seizures – was dealt with by the second Appeal Panel, as I will explain.

232. An understanding of the plaintiff’s argument must commence with an explanation of this part of her claim.

233. The plaintiff’s case was that she developed seizures consequent upon an injury – whether physically based (viz., referable to her “traumatic brain injury”) or psychologically based (viz., referable to her chronic adjustment disorder with anxiety or, at least theoretically, the aggravation of her attention deficit disorder) – suffered in the fall on 15 June 2018 that were debilitating, leading to an assessable impairment.

234. The first Appeal Panel, notably through Medical Assessor Mellick’s report, concluded that the plaintiff suffered from pseudo seizures – in fact, one such seizure occurred when Medical Assessor Mellick was examining her – but that those seizures were psychologically and not neurologically based. Accordingly, the first Appeal Panel concluded that, given their cause was not neurological, they could not be assessed under cl 13.3b of AMA5 as part of any permanent impairment to her “nervous system”.

235. The approach of Medical Assessor Glozier – and the second Appeal Panel, given it essentially adopted “his findings” and the “diagnoses” he made – was set out in part of his report to the second Appeal Panel under the heading “Summary”. This part of Medical Assessor Glozier’s reasons was set out when dealing with ground 2 (see [137], above) but, given its centrality to this argument, it is set out again, below:

“Summary

[The plaintiff] has marked limitations from her pervasive pain, frequent seizures, intolerance of over-stimulation that aggravates these and a range of reported cognitive complaints arising since her fall.

She has been diagnosed with a functional neurological disorder which is classified within DSM-5 under Section F45, and she certainly meets the criteria for this with multiple symptoms of altered voluntary motor or sensory function with associated distress and impairment. These could also be coded with several domains including weakness paralysis, abnormal movements, attacks or seizures, sensory loss, special sensory symptoms, or just with mixed symptoms. As one of the somatic symptom related disorders, this is specifically excluded from being rateable by the PIRS within Chapter 11.

Neither are we able to rate the marked impairment arising from her chronic pain and the management she does, together with Mick, to limit this and its impact on her”.

236. Clearly, neither Medical Assessor Glozier nor the second Appeal Panel made express reference to the finding made by the first Appeal Panel about the pseudo seizures being of psychological origin, as the first defendant accepted. Notwithstanding, the issue about “seizures” and their aetiology was squarely before the second Appeal Panel, as the first defendant submitted: that is apparent from the first paragraph of the above extract.

237. Furthermore, as is apparent from the extract, Medical Assessor Glozier accepted that the symptoms were psychologically based (consistent with what the first Appeal Panel had concluded) but that they were not referable to the compensable injury. The finding made was that they were referable to a somatoform disorder (a functional neurological disorder) and were, therefore, excluded from assessment by reason of cl 11.4 of the Guidelines.

238. Given the above, the plaintiff’s argument reduces to a question about whether the reasons of the second Appeal Panel on this issue were sufficient. The plaintiff argued that the reasons were legally inadequate and, in fact, suggested that they were “incoherent”. The first defendant adopted the contrary position.

239. As was explained in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (albeit in the context of the judicial obligation to provide adequate reasons), it is not the function of an appellate court to set the standard as to the level of detail required for there to be legally sufficient reasons; rather, “it is to determine whether the reasons provided have reached a minimum acceptable level” (emphasis in original).

240. The issue (viz., the medical dispute) that required resolution by the second Appeal Panel (and that is part of the “context” for the assessment of the adequacy of its reasons for present purposes) was to determine the plaintiff’s permanent impairment “as a result of the injury” (s 319(c) of the WIM Act). The other matters referred to it under ss 319 (d), (f) and (g) of the WIM Act were accepted as being presently irrelevant. The reasons of the second Appeal Panel complied with the “minimum acceptable level” required by, in my view, concisely stating why the seizures were unable to be considered by them when assessing the plaintiff’s permanent impairment resulting from the psychological injuries – as I will next explain.

241. The basis for the second Appeal Panel rejecting the nexus between the seizures and her compensable psychological injury – its “path of reasoning” – involved the application of cl 11.4 of the Guidelines, and was as follows: (a) the plaintiff “has been diagnosed with a functional neurological disorder”; (b) the plaintiff “certainly meets the criteria for this [disorder] with multiple symptoms of altered voluntary motor or sensory function with associated distress and impairment” – which, in context, is a reference to the spectrum of symptoms experienced by the plaintiff; (c) that “these could also be coded with several domains including weakness[,] paralysis, abnormal movements, attacks or seizures”; and (d) a functional neurological disorder is a somatic symptom related disorder that is excluded from assessment by reason of cl 11.4 of the Guidelines.

242. It followed, by concluding that the plaintiff’s seizures were referable to another condition (being a functional neurological disorder that was a somatoform disorder of the kind specified in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition, Text Revision, 2000), pp 485-511), the second Appeal Panel resolved that nexus issue adversely to the plaintiff.

243. The plaintiff also raised an argument about the sufficiency of the second Appeal Panel’s reasons in connection with “pain”. Again, in my view, the reasons of the second Appeal Panel complied with the “minimum acceptable level” required, by concisely stating why the pain was unable to be considered by them when assessing the plaintiff’s permanent impairment resulting from the psychological injuries.

244. The basis for the second Appeal Panel rejecting the nexus between the pain and her compensable psychological injury – its “path of reasoning” – involved the application of cl 11.5 of the Guidelines. The finding by the second Appeal Panel was that it was unable to “rate the marked impairment arising from her chronic pain” because it was attributable to “the pain from her physical injuries”; that is, it found that the pain was not attributable to the compensable psychological condition. That concise explanation is evident from that part of its reasons, under the heading “summary”, and from a wider consideration of the reasons of the second Appeal Panel. To illustrate this last matter, when dealing with the self-care and personal hygiene scale (table 11.1), the second Appeal Panel noted that the support provided to the plaintiff in this area, “is due entirely to the [plaintiff’s] somatic symptom disorder and the pain from her physical injuries. It is not due to her ADHD and anxiety symptoms” (Appeal Panel reasons at [58]).

245. It followed, by concluding that the plaintiff’s pain was referable to her physical injuries (that is, due to her “organic impairment” and “organic condition”), the second Appeal Panel resolved that nexus issue adversely to the plaintiff.

246. Thus, I do not accept, as was argued, that the reasons of the second Appeal Panel failed to explain the path of reasoning. Consistent with the remarks in Wingfoot (set out at [213], above), the reasons fulfilled the minimum requirements by outlining why the seizures and pain could not be considered as part of the assessment of the permanent impairment for the psychological injuries – viz., they were referable to a non-compensable psychological condition (cl 11.4) or were referable to an organic impairment and assessable elsewhere (cl 11.5). Further, to the extent that it was suggested that the reasons could have been “improved”, that may well be so, but it is not to the point: the “standard is not one of perfection”: Orr at [66], citing Bisley Investment Corporation v Australia Broadcasting Tribunal (1982) 40 ALR 233, 255.

247. It follows that this ground of review should be dismissed.

Orders

248. For the above reasons, I make the following orders:

1. Order that the amended summons filed 7 April 2025 be dismissed.

2. Order the plaintiff to pay the first defendant’s costs of the proceedings in this Court.

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Decision last updated: 23 May 2025