Coca-Cola Europacific Partners API Pty Ltd v Pombinho

Court of Appeal (NSW)|2024-06-25|Before: Ward P, White JA, Stern JA, Rothman J

Background

Mr Pombinho brought a claim in the Personal Injury Commission for permanent impairment arising from injuries said to have been caused by events at work between 11 December 2017 and 30 November 2020 during the course of his employment with the appellant. It was alleged that the injuries suffered were psychological injuries giving rise to a 23% whole person impairment (see primary judgment at [8]-[9]).
Mr Pombinho had also suffered injury to his left knee on 30 April 2018 and a consequential injury to his right knee as a result of the left knee injury; as well as a right arm injury on 9 September 2019. The primary judge also noted that there was reference to a pre-existing injury relevant to the claimed impairment ([12]).
On 19 August 2022, consent orders were made, referring the question of assessment of whole person impairment resulting from a primary psychological injury sustained in the course of Mr Pombinho's employment with the appellant to a Medical Assessor. A notation to those orders recorded that "[t]he Medical Assessor is to make such deduction as the Medical Assessor sees fit in respect of secondary psychological injury (if any)". The primary judge noted that the consent orders reflected agreement that there was a primary psychological injury with a deemed injury date of 31 May 2021 (see at [10]).
The appellant says that the notation had its origin in the fact that Mr Pombinho had suffered physical injuries which the appellant asserted caused a secondary psychological injury. The appellant notes that s 65A(1) of the Workers Compensation Act 1987 (NSW) (Workers Compensation Act) precluded any compensation being payable for any such secondary psychological injury; and that s 65A(2) provided that, in assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.

Medical Assessor's determination

After examining Mr Pombinho on 21 September 2022, Dr Surabhi Verma (a Medical Assessor appointed by the Personal Injury Commission) assessed Mr Pombinho's whole person impairment to be 24% as a result of a psychiatric injury, issuing a Medical Assessment Certificate on 26 October 2022. The Medical Assessor made no deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Workplace Injury Management and Workers Compensation Act), which requires deduction for any proportion of the claimed impairment which is due to a pre-existing injury (see primary judgment at [13]).

Appeal from Medical Assessor's determination

In November 2022, the appellant brought an appeal against the Medical Assessor's assessment pursuant to s 327 of the Workplace Injury Management and Workers Compensation Act.
The appeal was initiated by the filing of a "Form 10 - Appeal Against a Decision of Medical Assessor" in the Personal Injury Commission on 8 November 2022 (Form 10). On that form, the appellant identified the grounds of appeal relied upon as being: that the assessment was made on the basis of incorrect criteria (corresponding to s 327(3)(c)); and that the Medical Assessment Certificate contains a demonstrable error (corresponding to s 327(3)(d)).
Form 10 makes provision for submissions to be attached detailing the grounds of appeal. It is accepted by the appellant that those submissions define the ambit of the appeal before the Appeal Panel, both as to whether there was error and as to the reassessment if error be found (see AT 1.42-1.48). The submissions attached to the Form 10 in the present case set out four grounds of appeal.
Ground 1 was that the Medical Assessor failed to consider the notation to the consent orders ([9]) (that the Medical Assessor was to make such deduction as the Medical Assessor saw fit in respect of secondary psychological injury); i.e., the appellant says, whether there was a secondary psychological injury resulting from the physical injuries and, if so, whether there was any whole person impairment resulting from that secondary psychological injury (see at [10] of the Form 10 submissions). The appellant submitted (at [12]) that this was a failure by the Medical Assessor to take relevant evidence or relevant considerations relating to a potential secondary psychological injury into account. At [14], the appellant submitted that the failure to consider the notation represented a demonstrable error and that, even if the Medical Assessor had considered the notation, she failed to provide any reasons or express an opinion on the issue (that also constituting a demonstrable error - [13]).
Ground 2 was that the Medical Assessor had failed to consider the material in the appellant's "Reply to the Application to Resolve a Dispute" (Reply) or the appellant's "Application to Admit Late Documents" (AALD) ([15]). At [16], it was noted that the list of documents in the Medical Assessment Certificate did not "reference" the Reply or the material contained therein with the exception of the report of Dr Bisht. At [17], it was said that: The MAC [Medical Assessment Certificate] makes no reference to the evidence submitted on behalf of the appellant, including the clinical records from Hassall Grove Medical Centre, and while there is a cursory reference to the reports of Dr Bisht and Dr Akkerman at page 1 of the MAC, there is no further reference or consideration of these reports thereafter, including Dr Bisht's opinion in relation to a secondary psychological condition.
At [24], the appellant submitted: …there is a demonstrable error in that the MA [Medical Assessor] failed to consider the contents of the Reply and AALD and while the MA is not required to refer to all the evidence … she is required to consider the significant material that includes the reports of Dr Bisht and Dr Akkerman (which she evidently had access to) as well as the material contained in the Reply, in particular the clinical records from Hassall Grove Medical Centre.
At [25], the appellant submitted that, even if the Medical Assessor did consider the appellant's evidence, there had again been a failure to provide any or any adequate reasons as to why her opinion differed "to that of Dr Bisht in particular".
Ground 3 was that "[i]n combination with Grounds 1 and 2", the Medical Assessor failed appropriately to consider the impact of the respondent's physical injuries, including any medication he may be taking for those conditions, as well as the impact of COVID-19 on the Psychiatric Impairment Scale (PIRS).
After noting the record by the Medical Assessor of the respondent's social activities and activities of daily living (at [27]), at [28] the appellant submitted that the Medical Assessor's failure to consider the presence of a secondary psychological injury (Ground 1) and to consider the appellant's evidence (Ground 2) had further resulted in a failure to consider the impact of any secondary psychological condition and the respondent's concurrent workers compensation claims relating to his physical injuries in addressing the impact on the PIRS.
At [29], the appellant further submitted that the Medical Assessor's assessment of moderate impairment for "travel" omitted the possibility that the respondent had been unable to travel in the past two years before the assessment as a result of the restrictions on travel resulting from the COVID-19 pandemic as well as his various concurrent physical injuries.
In summarising Ground 3, the appellant submitted at [30] that there was a demonstrable error in the failure to consider the impact of any secondary psychological condition, the concurrent physical injuries and COVID-19 on the PIRS; and/or otherwise in failing to provide any or any adequate reasons as to why those matters would not have an impact on the PIRS.
Finally, Ground 4 addressed the fact that no deduction was applied by the Medical Assessor for the purposes of s 323 of the Workplace Injury Management and Workers Compensation Act. Reference was made to the inconsistency between the clinical records from Hassall Grove Medical Centre and report dated 10 April 2013 of Dr Akkerman (both of which demonstrated a previous psychiatric history), and the Medical Assessor's conclusion that the worker was mentally fit and well prior to commencing work with the appellant and that he was asymptomatic at the time of the alleged injury ([31], [36], [38]). The appellant submitted (at [39]) that consideration ought to have been given to the contribution of a pre-existing psychological condition to the degree of impairment, whether or not it was symptomatic, and a deduction applied under s 323 of the Workplace Injury Management and Workers Compensation Act. It was submitted that this would also need to take into account any adjustment for the effects of treatment for the pre-existing condition.

Appeal Panel's determination

The Appeal Panel published its reasons on 20 March 2023. The Appeal Panel recorded the four appeal grounds contained in the appellant's submissions and set out Mr Pombinho's submissions on those grounds. The Appeal Panel noted its understanding that the appeal was limited to the grounds on which the appeal was made; and that this meant that the appeal was confined to those particular demonstrable errors identified by a party in its submissions (see at [24] of the Appeal Panel's reasons).
Having referred to the contents of the Medical Assessment Certificate, the Appeal Panel addressed each of the four grounds.
As to Ground 1, the Appeal Panel agreed with the appellant that there was no consideration by the Medical Assessor as to whether Mr Pombinho had a secondary psychological injury resulting from the concurrent physical injuries to the knees and right arm and, if so, whether any whole person impairment resulted from such injury. The Appeal Panel concluded that the Medical Assessor erred in not considering, or adequately considering, the issue of secondary injury and, if there was a secondary injury, whether any whole person impairment resulted from it ([38]).
As to Ground 2, the Appeal Panel accepted that the Medical Assessor was not required to refer to all the evidence; however, the Appeal Panel said that she was required to consider the significant material. The Appeal Panel said that, although the Medical Assessor referred to the reports of Dr Bisht and Dr Akkerman, there was no reference to the clinical notes and records from Hassall Grove Medical Centre (which clinical records and notes the Appeal Panel considered were relevant and significant ([40])). The Appeal Panel concluded ([41]) that the Medical Assessor made a demonstrable error in that she failed to consider the contents of the Reply and the AALD.
As to Ground 3, the Appeal Panel concluded that the Medical Assessor had failed to consider whether Mr Pombinho had a secondary psychological injury resulting from his concurrent physical injuries, and if so, whether there was any whole body impairment from such an injury, and also the impact of COVID-19 on the PIRS (see [43], [47]). The Appeal Panel added at the conclusion of [47] that "[i]n particular, the restrictions in place for travel because of the COVID-19 pandemic had not been considered".
As to Ground 4, the Appeal Panel noted at [60] that the Medical Assessor made no reference to the various entries in clinical records of Hassall Grove Medical Centre; in particular, no reference was made to the entries in 2017 before Mr Pombinho commenced work with the appellant in December 2017. These entries, the Appeal Panel said, evidenced a pre-existing condition requiring treatment. The Appeal Panel considered that these clinical notes were evidence of Mr Pombinho's psychological state in 2017 and that, at the stage when he commenced employment with the appellant, he was suffering psychiatric symptomatology.
At [61], the Appeal Panel said that, in failing to review the clinical notes of the treating doctors, the Medical Assessor did not actually properly address whether a proportion of the permanent impairment was due to a previous injury or a pre-existing condition. The Appeal Panel was of the view that the Medical Assessor failed to provide adequate reasons for not making a deduction pursuant to s 323 in view of the evidence of the treating doctors; and considered that the Medical Assessor erred in not giving appropriate weight to the clinical notes and records of the Hassall Grove Medical Centre and in finding that the pre-existing condition affecting Mr Pombinho was asymptomatic at the time of the subject injury ([61]).
The Appeal Panel concluded that it was necessary for Mr Pombinho to undergo a further medical examination because there was insufficient evidence on which to make a determination ([62]), and went on to say that "[h]aving found error, the Appeal Panel considered it necessary to re-assess the PIRS categories as this could be relevant to the assessment of any deduction".
At [63]ff, the Appeal Panel recorded the findings of Medical Assessor Glozier, who re-examined Mr Pombinho on 1 March 2023. The Appeal Panel expressly adopted his report and findings.
The Appeal Panel, in adopting the report and findings of Medical Assessor Glozier, concluded that there was clearly a pre-existing condition that was symptomatic that would require a s 323 deduction. However, because of the inconsistency in the history taken from Mr Pombinho (compared to the contemporaneous notes), Medical Assessor Glozier (and thereby the Appeal Panel) said that it was impossible to determine accurately a specific percentage for the purposes of s 323, and so it was appropriate to apply a 10% deduction (as the legislation provided) (although noting that the contribution to his current impairment was likely much greater given how symptomatic he was). The suggestion of a secondary psychological injury from the previous physical injuries was rejected.
On that re-examination, Mr Pombinho's whole person impairment was assessed to be significantly lower than that assessed by the original Medical Assessor. This was as a result of lower assessments for social and recreational activities (class 2 rather than class 3), travel (class 1 rather than class 3), social functioning (class 2 rather than class 3) and adaptation/employability (class 3 rather than class 5), together with a deduction for pre-existing injury.
The Appeal Panel thus determined that each of the grounds of appeal had been established and that the Medical Assessment Certificate issued by the original Medical Assessor should be revoked. The Appeal Panel issued a new certificate assessing whole person impairment of 6% (having concluded that there was an assessment of 7% and reducing that assessment by 10% pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act).

Primary judgment

The grounds for judicial review of the Appeal Panel's decision (as set out at [2] of the primary judgment) asserted error of law and jurisdictional error in four respects: first, in reassessing all categories of PIRS when those assessments were not the subject of the grounds of appeal; second, in considering that the PIRS categories had been appealed generally when the grounds of appeal were limited to a challenge that the Medical Assessor had failed to consider the effects of a possible secondary psychological injury; third, in considering that the category of travel had been alleged generally to be in error when the only ground was that the Medical Assessor had not adequately considered the effects of COVID-19 on travel; and, fourth, in failing to give reasons for accepting the findings of Medical Assessor Glozier in preference to the findings of the Medical Assessor and the other medical practitioners.
The primary judge, having noted that the legislation confined the Appeal Panel to the grounds of appeal on which the appeal was made (which the appellant accepts is correct), went on to say (at [55]) that there was no appeal ground relating to the classification of the activities of Mr Pombinho and no complaint as to the failure to examine or any error in the clinical examination of Mr Pombinho. The appellant takes issue with both those propositions.
As to the statement that "[t]here is no appeal ground relating to the classification of the activities of the plaintiff", the appellant points to Ground 3, which it says was in terms directed to that issue (albeit by reference to the worker's physical injuries and secondary psychological injury, as well as COVID-19). As I explain when outlining the appellant's submissions on appeal, the appellant argues that "disentanglement" of Mr Pombinho's physical and psychiatric disability was something that had to touch on all tables of the PIRS; and that, if the Medical Assessor had failed to undertake that disentangling exercise, then it was necessary for the Appeal Panel to do so.
As to the statement that "[t]here is no complaint as to the failure to examine or any error in the clinical examination of the plaintiff", while the appellant accepts that there was no complaint as to the failure to examine Mr Pombinho, the appellant says that the grounds asserted error in the clinical examination of the worker by the Medical Assessor (and argues that it was not necessary to frame the error as a failure to examine Mr Pombinho in order to justify his re-examination by the Appeal Panel).
His Honour noted that the Appeal Panel found that there was no secondary psychological injury nor any injury arising from the physical injuries suffered by Mr Pombinho as a result of any such work injury ([56]), and said (at [57]) that, in relation to that ground, the consequence of the failure, "if there were a failure", to have regard to "all" of the material attached was that the pre-existing injury was "underestimated" and not deducted in accordance with s 323 of the Workplace Injury Management and Workers Compensation Act. The primary judge went on at [57] to say that: In other words, Ground 2 is a particular of the reasons why Ground 4 should be successful and Grounds 1 and 2 are particulars of the impairment arising from an injury other than the relevant injury, which is to be or was assessed under the claim.
As I address in due course, the appellant takes issue with the characterisation of Ground 2 as a "particular" of Ground 4.
At [58], his Honour said that "[n]otwithstanding the confined nature of the grounds of appeal", the Appeal Panel embarked upon a clinical examination. As to this, at [59], his Honour said that a decision to undertake (or a failure to undertake) such an examination would not ordinarily be an error of law and (assuming there exists authority in the Workplace Injury Management and Workers Compensation Act to do so) would certainly not be jurisdictional error. However, his Honour went on to say at [60] that the Appeal Panel had also embarked on a process by which each of the activities was reassessed anew and that it had calculated for itself the whole person impairment arising from the injury or currently suffered.
The primary judge concluded at [71] that, in embarking upon a re-assessment of the whole person impairment, the Appeal Panel did not limit the review "to the grounds of appeal on which the appeal was made" and thus exceeded the jurisdiction permitted by s 328(2) of the Workplace Injury Management and Workers Compensation Act. Hence, his Honour concluded that there was jurisdictional error and error of law ([71]) and quashed the Appeal Panel's determination for the reasons at [83]-[84] which have been noted above.

Leave

In his submissions, Mr Pombinho contended that leave was required for the bringing of this appeal on the basis that the amount in issue was less than $100,000, noting that the assessment of the Medical Assessor was 24% whole person impairment which would entitle him to a payment of $65,050; and he submitted that leave should be refused.
The appellant, on the other hand, maintained that leave is not required because the issue as to whether or not the Appeal Panel's decision (assessing 6% whole person impairment) is set aside will affect whether Mr Pombinho is barred from bringing common law proceedings by reason of the 15% permanent impairment threshold imposed by s 151H of the Workers Compensation Act (citing Oertel v Crocker (1947) 75 CLR 261 at 265-267; [1947] HCA 40; Allianz Australia Insurance Ltd v Rutland (2015) 73 MVR 211 at [3], [5]; [2015] NSWCA 328).
In that regard, maintenance of the 6% whole person impairment assessment would mean that: first, Mr Pombinho would have no entitlement to lump sum compensation under s 66 of the Workers Compensation Act (cf the sum of $66,310 to which he would be entitled on the Medical Assessor's 24% assessment); second, as adverted to above, Mr Pombinho would be precluded by s 151H(1) of the Workers Compensation Act from bringing a common law damages claim (the value of which, together with the lump sum compensation, would exceed $100,000, as explained in the appellant's reply submissions at [7]); and, third, Mr Pombinho would not be characterised as a "worker with high needs" as defined by s 32A of the Workers Compensation Act (whereas a 24% whole person impairment would expose the appellant to liabilities for weekly benefits until age 68 (ss 38 and 52) and medical treatment for life (s 59A) if he remained in the workers compensation scheme, the value of which, together with the lump sum compensation, would exceed $100,000).
Although Counsel for Mr Pombinho did not abandon the contention that leave was necessary, he was content to proceed to argument on the substantive issues (AT 6.34-36). For the reasons articulated by the appellant, leave to appeal is not necessary.

Statutory provisions

It is convenient at this stage to set out the relevant statutory provisions.
Section 327 of the Workplace Injury Management and Workers Compensation Act relevantly provides: (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) 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. (3) The grounds for appeal under this section are any of the following grounds - (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out. …
By reference to s 327(4), the President (or a delegate) effectively acts as what has been described as a "gatekeeper" in deciding whether to permit the appeal to proceed (see Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88 at [20]).
Section 328(2) provides that: 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.
As adverted to above, the appellant accepts that the effect of s 328(2) is that a medical appeal must be limited to the grounds relied upon by an appellant in such an appeal (pointing in this regard to Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]; New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [49] per Davies J). There is, therefore, no issue as to the proper ambit of an appeal to the Appeal Panel.
An appeal is to be heard by an Appeal Panel constituted by three persons chosen by the President, two of whom must be medical assessors (s 328(1)). A worker may be required to submit himself or herself for examination by one of the medical assessors (s 324(1)(c), (3), (4)). The examination need not be conducted by all the members of the Appeal Panel if they agree for it to be conducted by only some (s 328(2A)).
The assessment of the degree of permanent impairment is to be made in accordance with the guidelines as in force at the time the assessment is made pursuant to s 376 (s 322(1)).
The relevant guidelines in the present case were the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (Guidelines), pursuant to which psychiatric injuries are assessed, in terms of calculating whole person impairment, pursuant to the PIRS (see tables 11.1 to 11.6 of the Guidelines). Those tables deal with different aspects of a person's functioning from a psychiatric perspective: 11.1 - self care and personal hygiene; 11.2 - social and recreational activities; 11.3 - travel; 11.4 - social functioning; 11.5 - concentration, persistence and pace; and 11.6 - employability.
Section 323(1) provides that, 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.
In relation to pre-existing psychiatric injury, the Guidelines provide at 11.10 that "[p]re-existing impairment is calculated using the same method for calculating current impairment level [i.e., by reference to the PIRS]" and it is stated that "[t]he assessing psychiatrist uses all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function". Section 323(2) provides that, if the extent of a deduction will be difficult or costly to determine, it is to be assumed that the deduction is 10% unless that assumption is at odds with the available evidence.

Appellant's submissions

The error identified by the appellant in the primary judge's reasoning is that the appellant says that his Honour failed to recognise the breadth of the grounds of appeal, namely that they encompassed the whole of the Appeal Panel's assessment; and hence his Honour was wrong to conclude that the re-assessment undertaken by the Appeal Panel was "well beyond the grounds of appeal raised by the appellant" ([71]).
The appellant complains that the primary judge took an unduly narrow view of Ground 2. The appellant argues that, while its submissions raised specific matters going to various of the PIRS criteria, the structure of the appeal was such that all of those PIRS criteria were in issue because Ground 2 contended that the Medical Assessor had failed to take into account the material referred to in the submissions, which touched upon all of the tables of PIRS (and, most directly, the "radically different" assessment by Dr Bisht of the PIRS criteria) (see AT 12.43ff). The appellant submits that it sufficed that it identified a demonstrable error in the Medical Assessor's reasoning by failing to have regard to that material in the application of the PIRS; and that, given the failure by the Medical Assessor to deal properly with Dr Bisht's opinion, it was appropriate that the Appeal Panel re-assess whole person impairment on the merits.
In other words, it is said that Ground 2 alleged a wholesale failure by the Medical Assessor meaningfully to consider large slabs of material in undertaking the PIRS assessment; and that, if that ground was established, it was necessary for the Appeal Panel to undertake that assessment in light of the material the Medical Assessor had overlooked (one way of so doing being to conduct its own examination of Mr Pombinho).
Thus, it is submitted that the primary judge's description (at [57]) of Ground 2 as a "particular" of the reasons why Ground 4 should succeed artificially confined the breadth of Ground 2; and that his Honour's description at [58] of the grounds of appeal as being "confined" was incorrect.
The appellant also submits that reassessment of the PIRS was required in order to consider the necessity for any deduction for pre-existing injury, which was the subject of Ground 4; and hence that Ground 4 alone justified reassessment of the PIRS by the Appeal Panel.
In that regard, the appellant submits that the process of determining what, if any, deduction was required for pre-existing injury (put in issue both by Ground 1 and Ground 4) required a comparison between the present impairment and pre-existing impairment (i.e., a disentanglement between the impairment suffered due to the pre-existing injury and that due to the injury giving rise to the present claim), which the Medical Assessor had not assessed. The appellant argues that there is a risk of incoherence in assessment if the Appeal Panel is required to start with the assessment of the PIRS undertaken by the Medical Assessor in relation to the worker's current condition and then only to reconsider that assessment for the purpose of determining any deduction for pre-existing injury. The appellant says that the deduction required for pre-existing impairment necessarily requires a comparison between the worker's current and pre-existing condition.
By way of an example of the incoherence that would arise if the Appeal Panel were precluded from considering the worker's present functioning (i.e., on the respondent's argument that the Appeal Panel must start by adopting the whole person impairment assessed by the Medical Assessor and apply any deduction for pre-existing impairment only to that amount), in oral submissions Senior Counsel for the appellant postulated the following situation. Assuming that, in the course of carrying out a comparison between the worker's functioning before and after the current injuries, the Appeal Panel considered that the worker had 5% whole person impairment due to the pre-existing injuries and that the present whole person impairment was 6%, then on that state of affairs only 1% of the current whole person impairment would be due to the current injuries. However, the appellant says that, on the primary judge's view, the Appeal Panel on appeal could not disturb the original assessment of 24% whole person impairment and therefore, notwithstanding that the vast bulk of the worker's impairment is due to the current injuries, the deduction of 5% would apply to the 24% (i.e., resulting in a 19% whole person impairment assessment), not the 6% that the Appeal Panel had assessed was the current impairment (pre-deduction for the pre-existing injury) (see AT 14.29ff).
The appellant argues that one cannot perform the disentangling exercise required by s 65A and s 323 by keeping fixed the Medical Assessor's original whole person impairment assessment because the whole purpose of the Appeal Panel's assessment is to 'factor out' any pre-existing impairment, which it may do by conducting its own assessment. In other words, the appellant submits that the challenge here made to the deduction for pre-existing injury necessarily requires a comparative exercise in an assessment of the impairment before and after the current injury (see the discussion at AT 15.14ff).

First Respondent's submissions

Mr Pombinho emphasises the point that has been conceded upfront by the appellant: that an appeal pursuant to s 327 of the Workplace Injury Management and Workers Compensation Act is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made (s 328(2)), pointing to the Explanatory Note at the time the relevant amendment was made in 2010 to the effect that an appeal from a medical assessment is not a full review of the medical assessment.
Hence, Mr Pombinho says that there was no power to conduct a general reassessment and no jurisdiction to reassess any matter that had not been the subject of the appeal and in respect of which it had not found error. As to the reliance placed by the appellant on the Guidelines for calculation of a s 323 deduction in respect of a psychological injury, counsel for Mr Pombinho referred to the decision of Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks) per Simpson AJA, for the submission that the correct enquiry where there is an asymptomatic pre-existing condition is how the pre-existing contribution contributes to the current impairment, and that the Guideline is inconsistent with the settled law in relation to s 323 (to the extent that it excludes consideration of any contribution made to the current impairment by a pre-existing, but asymptomatic condition, from that enquiry) (see AT 18).
In reply submissions, the appellant says that what was held in Marks was that, because the Guidelines were premised on the pre-existing injury causing impairment which is symptomatic, they did not deal with asymptomatic pre-existing injuries, and they were to that extent inconsistent with the legislation. However, the appellant says that there was no broader view there expressed and no suggestion here (in any notice of contention) that the process in the Guidelines (described by the appellant as a subtractive process) was inconsistent with s 323 (see AT 34.41).
As to the four grounds of appeal that were before the Appeal Panel, Mr Pombinho says that: Ground 1 was limited to a question whether there should be a deduction for impairment resulting from a secondary psychological injury; Ground 2 was a complaint that the Medical Assessor had failed to consider the reports of Drs Akkerman and Bisht and the clinical notes from Hassall Grove Medical Centre (but there was no submission that the material would result in any change to the assessments of the PIRS categories); Ground 3 recorded some matters relating to social activities and daily living but did not relate those to any category within the PIRS; and Ground 4 related to an alleged error in failing to consider a pre-existing psychological condition in assessing the degree of whole person impairment and failing to deduct existing impairment assessments.
Insofar as the primary judge referred to Ground 2 as a particular of the reasons why Ground 4 should be successful, counsel for Mr Pombinho submits that, read with Ground 4 (which relates to the s 323 deduction), Ground 2 is identifying the material to which it is said the Medical Assessor did not refer (being the clinical records from the Hassall Grove Medical Centre) (see AT 23.13ff).
As to Ground 1, it is noted that the Appeal Panel determined that there was no secondary psychological injury.
As to Ground 2, Mr Pombinho submits that the Appeal Panel did not consider that there was any error in the alleged failure to consider the reports of Drs Akkerman and Bisht (on the basis that those reports had been referred to by the Medical Assessor - though I note that the only reference to them was in the list of documents that were before the Medical Assessor). While Mr Pombinho accepts that the Appeal Panel did consider that there had been a failure to consider the Hassall Grove Medical Centre reports and clinical notes (and considered those notes to be significant), Mr Pombinho argues that the balance of the Appeal Panel's reasons discloses that the significance of that material was not in respect of any aspect of the assessment of the PIRS categories as made by the Medical Assessor; rather the significance of the clinical notes went to the question of any s 323 deduction (the subject matter of Ground 4). Mr Pombinho argues that Dr Akkerman's report was equally only relevant to a s 323 deduction, whereas Dr Bisht's report was the basis for considering whether there was a secondary psychological injury. Mr Pombinho argues that the Appeal Panel did not find that the failure to refer to the reports of Drs Akkerman and Bisht was relevant to the assessment of the PIRS categories (noting that the appellant did not seek to have him re-examined nor was there a submission that there should be a re-examination to allow a reassessment of the PIRS categories).
As to the appellant's submission that a re-examination was authorised because the Appeal Panel was of the view that it was necessary to re-assess the PIRS categories as this could be relevant to the assessment of any deduction, Mr Pombinho complains that this ignores the fact that the Appeal Panel was limited to the grounds of appeal. Mr Pombinho argues that an assessment of the s 323 deduction does not involve a reassessment of the overall impairment; rather, the deduction only involves a determination of the extent to which the overall impairment is due to a previous injury; and that there is no logical incoherence in such a conclusion (as the appellant contends) (AT 19.19).
The contention by Mr Pombinho is that the challenge made that the Medical Assessor has not assessed the s 323 deduction is not inherently a challenge to the finding as to the overall impairment and that no comparative analysis is required. Rather, it is submitted that if there has been (as was here found to have occurred) a failure to consider a 323 deduction, one does not reconsider the overall whole person assessment. Rather, one simply asks what proportion of that figure is due to a pre-existing condition (if any) and makes a deduction based on that finding from the whole person impairment figure. It is submitted that there is no inconsistency or absurdity arising from the hypothetical example postulated by the appellant; what is required is an assessment of the proportionate deduction (and that the same thing follows in the application of s 65A, thought that did not here arise as there was not found to be a secondary psychological injury) (see AT 19).
Mr Pombinho submits that the relevant question is whether the appellant in its submissions (setting out the grounds of appeal before the Appeal Panel) raised the question of the individual PIRS categories (and if so, did the Appeal Panel find that there was an error in that respect, and did that justify the reassessment). Mr Pombinho submits that the appellant did not raise such a challenge (and hence the reassessment of whole person impairment was beyond power of the Appeal Panel) (AT 19.47-50).
I note that, in reply submissions, the appellant cavils with the proposition that it was necessary in the Form 10 submission to make specific reference to the PIRS categories or any matters relevant to that assessment in relation to Ground 2; rather, the appellant says that it was sufficient to raise the error in relation to the failure by the Medical Assessor to take into account the material adverted to above (which the appellant notes touched upon all of the PIRS criteria). The appellant emphasises that it specifically pointed out that the Medical Assessor failed to explain why her reasoning differed from Dr Bisht, who gave a radically different PIRS assessment. The appellant says that, even assuming it to be correct that the material not considered by the Medical Assessor was only relevant to a s 323 deduction, consideration of that matter justified reassessment of the PIRS by the Appeal Panel.
As to Ground 3 of the grounds of appeal before the Appeal Panel, and the submission that this required an exercise of disentangling the physical and psychiatric disabilities, Mr Pombinho says that no submission was made as to how the physical injury had impacted on any of the PIRS categories or had affected the matters of evidence to which reference is made; and that the only submission that mentioned a PIRS category was the submission that the assessment of travel omitted the possibility that he had been unable to travel as a result of restrictions resulting from COVID-19 (a matter that he says had not previously been raised).
Mr Pombinho accepts that the finding by the Appeal Panel of error in this respect arguably allowed the Appeal Panel to consider the proper assessment of travel considering any restrictions that arose from COVID-19 or the physical injury, but he says that the Appeal Panel did not do this. Mr Pombinho says that the history taken by Medical Assessor Glozier as to his ability to, or any restrictions on, travel did not attribute any restrictions on travel either to the physical injury or the restrictions due to COVID-19. Mr Pombinho argues that if the error was a failure to consider the effects of those matters, then the correction of the error would be to consider those matters, but that the Appeal Panel did not engage in that process; rather that it simply accepted (without giving reasons) the view of Medical Assessor Glozier as to what the assessment should be as at 20 March 2023. Again, Mr Pombinho emphasises that the Appeal Panel was only entitled to consider the grounds before it; and he submits that this means that the Appeal Panel was required to accept the findings and conclusions of the Medical Assessor in respect of the matters that were not the subject of the grounds of appeal regardless of the view it had as to the correctness of those findings and conclusions.
In reply submissions, the appellant complains that Mr Pombinho's submissions involve an attempt to re-litigate the merits of the medical evidence. As to the above submission in relation to Ground 3, the appellant points to the detail of Ground 3 provided in the annexure to Form 10, which referred generally to the impact of Mr Pombinho's physical injuries on the PIRS and referred specifically to instances of social activities and activities of daily living and travel, which the appellant says are plainly referrable to a number of aspects of the PIRS (referring to tables 11.2, 11.3 and 11.6 of the Guidelines). The appellant says that Ground 3 was not limited simply to a complaint about the proper assessment of travel considering any restrictions that arose from COVID-19 or physical injury.
As to the fourth ground of review before the primary judge (numbered as ground 5 in the summons but in substance ground 4), Mr Pombinho says that the primary judge did not make a determination in respect of this ground of review (which asserted a failure of the Appeal Panel to give reasons for accepting the findings of Medical Assessor Glozier in preference to the findings of the Medical Assessor and the other medical practitioners) as it was not necessary for his Honour to do so given his Honour's conclusion with respect to the first three grounds of review. Mr Pombinho argues that, if the appeal is successful, it does not follow that there would be orders dismissing the summons; rather, the fourth ground of review would need to be determined (relying on his submissions before the primary judge in respect of this ground of review). The appellant takes issue with this submission on the basis that, to the extent that Mr Pombinho appears to complain about the Appeal Panel accepting, without reasons, the re-examination of one of its members, this goes beyond a complaint about the Appeal Panel exceeding its jurisdiction by considering matters not within the scope of the appeal. The appellant points out that this is not the subject of any notice of contention. In debate, it was suggested that in fact a notice of cross-appeal may have been the appropriate course. (Although directions were made at the end of the hearing permitting the filing by Mr Pombinho of a notice of contention or a notice of cross-appeal, none appears to have been filed.)
In reply submissions, the appellant says that, in any event, the complaint raised by the fourth ground of review is without substance: that the Appeal Panel was expressly permitted, by s 328(2A) of the Workplace Injury Management and Workers Compensation Act, to rely on an examination conducted by only one of its members; and that it was under no obligation to give further reasons for adopting the findings of that re-examination, assuming that conducting it was within the scope of the appeal. The appellant submits that the reasoning of the member who conducted the re-examination became the reasoning of the Appeal Panel (by adoption of his report and findings).

Determination

The sole ground of appeal, as noted earlier, goes to the finding that the Appeal Panel had exceeded its jurisdiction by not limiting itself to the grounds of appeal before it.
The substance of the dispute between the parties on this issue is as to whether (as the appellant contends) the finding of error in relation to the Medical Assessor not considering the material referred to in Ground 2 (the reports of Drs Bisht and Akkerman and the clinical records and notes of the Hassall Grove Medical Centre) permitted the Appeal Panel to review the Medical Assessor's original assessment of whole person impairment (including by reference to the PIRS categories) for the purpose of determining what deduction should be made, if any, by reference (relevantly) to the pre-existing physical or psychiatric injuries (there being no finding as to a secondary psychiatric injury consequent upon an earlier physical injury). The appellant argues that this issue is within the scope of the grounds of appeal that were before the Appeal Panel and that disentanglement of the contribution of the pre-existing injuries to the current impairment required (at least in the present case) a re-assessment of the current whole person impairment.
In essence, Mr Pombinho maintains that the grounds of appeal before the Appeal Panel only related to matters involving deductions from the overall assessment of whole person impairment; and that the Appeal Panel was required to proceed from the starting point of the Medical Assessor's original assessment of whole person impairment (to which any deductions would be applied).
In my opinion, Ground 2 of the grounds of appeal before the Appeal Panel was not confined (as Mr Pombinho submits) to a failure of the Medical Assessor to consider the clinical records and notes from the Hassall Grove Medical Centre. The complaint raised by this ground, as noted above, was that the Medical Assessor had failed to consider the material raised in the appellant's Reply and the AALD. That material was not limited to the Hassall Grove Medical Centre records. It included (as the submissions as to Ground 2 made clear) the reports of Dr Bisht and Dr Akkerman. As conceded in this Court, the only specific reference to those reports in the Medical Assessment Certificate was the notation that they had been before the Medical Assessor (see AT 26.29) (other than under the heading "facts on which the assessment is based" - see AT 26.47).
The complaint was clearly made by Ground 2 that there was no "reference [to] or consideration" of either the opinion of Dr Bisht in relation to a secondary psychological condition, or the report of Dr Akkerman, both of which were of course relevant to the Ground 4 complaint as to failure to consider or make a s 323 deduction. However, Ground 2 was not limited to that error.
To correct the error as to the failure to consider all the material submitted by the appellant, it follows that the Appeal Panel would be required to take into consideration all that material (to the extent that it considered it significant and relevant). That material related to (or in the appellant's words, "touched upon") all of the PIRS categories that were to be taken into consideration in relation to the assessment of Mr Pombinho's whole person impairment by reason of his psychiatric injury. I do not accept that Ground 2 is confined to being no more than a particular of Ground 4 (i.e., that it was no more than a reason that there was error as contended for by Ground 4).
In any event, Ground 4 in my opinion suffices to bring the assessment of Mr Pombinho's current whole person impairment within the scope of the grounds of appeal and hence within the jurisdiction of the Appeal Panel. That is because I accept the appellant's submission that, in order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (i.e., the 24% whole person assessment made by the Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment (and then to apply that amount to the fixed starting point) without considering the starting point itself. The approach required by the Guidelines is a subtractive approach, requiring a deduction from the starting point of whole person impairment but it would make the exercise artificial if, having been required to consider all of the material that the Medical Assessor had failed to consider, the Appeal Panel could not then revisit the starting point of the assessment.
Accordingly, I would uphold the appeal and set aside the order quashing the Appeal Panel's decision. I note that, during the appeal, the appellant indicated that it did not press the order sought in the notice of appeal for costs of the appeal, nor did it seek an order for costs of the proceedings at first instance.
For completeness, as to the issue which the primary judge did not determine (relating to the adoption by the Appeal Panel of Medical Assessor Glozier's report and findings), I do not consider that this issue warrants remittal to the primary judge for determination (since the complaint is in essence as to the adequacy of reasons for adopting that report). The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted Medical Assessor Glozier's assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt Medical Assessor Glozier's assessment (for the reasons contained therein).
Therefore, I would make the following orders: 1. The appeal be allowed. 2. Set aside the orders made by Rothman J on 12 December 2023. 3. In lieu thereof, dismiss the Amended Summons filed on 11 May 2023
WHITE JA: I agree with the orders proposed by Ward P and with her Honour's reasons.
STERN JA: I agree with the orders proposed by Ward P and with her Honour's reasons for proposing those orders.

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JUDGMENT

WARD P: In this matter, the appellant (Coca-Cola Europacific Partners API Pty Ltd) appeals from the decision of Rothman J in the Common Law Division (Pombinho v Coca-Cola Europacific Partners API Pty Ltd [2023] NSWSC 1536) (the primary judgment) in respect of a judicial review application by the first respondent (Luis Pombinho).
The judicial review application concerned a decision of the third respondent, a Medical Appeal Panel of the Personal Injury Commission (the Appeal Panel), comprised of Ms Carolyn Rimmer, Dr Michael Hong and Prof Nicholas Glozier (Medical Assessor Glozier), in relation to the assessment of Mr Pombinho's whole person impairment following a work injury that occurred during his employment by the appellant. The second respondent is the President of the Personal Injury Commission of New South Wales (President). The Appeal Panel had upheld an appeal lodged by the appellant (Mr Pombinho's employer) in relation to the President's findings as to Mr Pombinho's whole person impairment (which were based upon an assessment conducted by a Medical Assessor to whom the President had referred Mr Pombinho).
The primary judge found that the Appeal Panel had exceeded its jurisdiction by dealing afresh with the Medical Assessment of Mr Pombinho, rather than dealing only with the issue raised on appeal before it (see at [83] of the primary judgment); and that this error was material and related to the ultimate determination of the Appeal Panel ([84]). His Honour quashed the determination of the Appeal Panel and the Medical Assessment Certificate issued in the appeal that had been brought by Mr Pombinho's employer and remitted the appeal to the President to be determined in accordance with law.
The appellant appeals against this decision, the sole ground of appeal being that: The primary judge erred in concluding that the third respondent had exceeded its jurisdiction by not limiting itself to the grounds of appeal on which the appeal to it had been made.

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