Coenradi v The GEO Group Australia Pty Ltd

Solicitors: Turner Freeman Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) Crown Solicitor's Office (Second and Third Defendant) File Number(s): 2021/236788 Decision under appeal Court or tribunal: Personal Injury Commission of NSW Date of Decision: 19 May 2021 Before: The Appeal Panel of the Personal Injury Commission, comprised of Member Jane Peacock, Medical Assessor Nicholas Glozier and Medical Assessor Patrick Morris File Number(s): M1-5743/20

Judgment

1. HIS HONOUR: The plaintiff, Anthony Coenradi, seeks judicial review of a determination of the Appeal Panel (hereinafter the "Appeal Panel") of the Personal Injury Commission of New South Wales (hereinafter "the Commission") in relation to a decision of 19 May 2021. The decision assessed the plaintiff's psychological injuries said to have been sustained as a result of an incident on 4 November 2016.
2. The Appeal Panel of the Commission was constituted by Member Jane Peacock, Medical Assessor Nicholas Glozier and Medical Assessor Patrick Morris under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (hereinafter "the 1998 Act").
3. The first defendant, The GEO Group Australia Pty Ltd (hereinafter "GEO"), conducts a correction facility and the plaintiff alleges that on 4 November 2016, while he was incarcerated, he was assaulted. The plaintiff alleges that correctional officers employed by GEO assaulted him. The plaintiff alleges that, as a consequence of that assault, he sustained psychiatric injury.
4. The second and third defendant, being the President of the Commission and the Appeal Panel respectively, submit to any order of the Court save as to an order for costs. The only active participants in the proceedings are the plaintiff and GEO.
5. It is unnecessary for the Court to determine whether the circumstances giving rise to the injuries were as alleged by the plaintiff. The issue before the Court concerns only the alleged error of law or jurisdiction associated with the determination of the degree of permanent impairment arising from the injuries.
6. As a result of the application of the provisions of s 26C of the Civil Liability Act 2002 (NSW), general damages may not be awarded to the plaintiff, unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%. The degree of permanent impairment is assessed under Part 2A of the Civil Liability Act and Part 7 of Chapter 7 of the 1998 Act.
7. The original Summons was amended by document filed 25 February 2022 and further amended by document filed 25 February 2022. The Further Amended Summons (Judicial Review) (hereinafter "the Further Amended Summons") is the relevant pleading in this Court.

Procedural history

1. It is unnecessary to recite the facts of the assault in greater detail than has already been done. Nevertheless, it is necessary to deal to some greater extent with the procedural history of the controversy between the parties.
2. As earlier stated, the dispute between the plaintiff and GEO is whether the injury to the plaintiff resulted in the plaintiff suffering a degree of permanent impairment of at least 15%. On 23 November 2020, an Approved Medical Specialist (hereinafter "AMS" or "Medical Assessor"), Dr John J Baker, issued a Medical Assessment Certificate (hereinafter "the Original Certificate").
3. The AMS dealt with the matter pursuant to a referral by the Commission and he assessed the plaintiff's degree of permanent impairment at 15%. [1] Notwithstanding the overall impairment of 17%, the AMS reduced that assessment by 10% (i.e., 1.7% of the permanent impairment) on account of pre-existing conditions. [2]
4. GEO appealed against the assessment. The issue before the Appeal Panel was the effect of the pre-existing injuries in circumstances where the AMS, Dr Baker, had formed the opinion that the plaintiff suffered from four pre-existing conditions: a mild intellectual impairment; "alcoholic induced mood and psychotic symptoms"; Organic Mood Disorder; and, Intermittent Explosive Disorder.
5. On 19 May 2021, the Appeal Panel determined that the Original Certificate should be revoked and issued a subsequent Certificate ("the Appeal Certificate") determining the plaintiff's degree of permanent impairment at 11%. [3] The Appeal Panel found that the 10% deduction was insufficient and that a one-third deduction was the appropriate deduction on account of pre-existing conditions. [4] It is of this last-mentioned decision, or the effect of it, that the plaintiff seeks judicial review.

Legislation

1. It is necessary to deal with the legislative scheme governing the assessment of permanent impairment for the plaintiff's injury. First, it is necessary to point out that, as a result of his incarceration at the time of the injury, the plaintiff's claim for damages arising from the injury is governed by the provisions of Part 2A of the Civil Liability Act. Relevantly, s 26C of the Civil Liability Act provides that damages may not be awarded (whether for economic or non-economic loss) unless, as stated earlier, the injury that has been suffered by an offender results in the death of the offender or in a degree of permanent impairment that is at least 15%.
2. By operation of s 26D of the Civil Liability Act, the degree of permanent impairment is to be assessed pursuant to Pt 2A of the Civil Liability Act and under Pt 7 (Medical Assessment) of Ch 7 of the 1998 Act. By s 26D(2) of the Civil Liability Act, certain necessary changes are effected to render the provisions of Pt 7 of Ch 7 of the 1998 Act applicable.
3. Thus, for the purposes of Pt 2A of the Civil Liability Act, the term "worker" in the 1998 Act is treated as a reference to an offender, in this case, the plaintiff. The necessary corollary to that proposition is that the term "employer" or "worker's employer" in the 1998 Act is taken to be a reference to the Crown.
4. Further, a reference to the WorkCover Guidelines in the 1998 Act is taken to be a reference to the Guidelines issued under subs 26D(2A) of the Civil Liability Act. The terms of ss 26C and 26D of the Civil Liability Act bear repeating and are in the following terms: "26C NO DAMAGES UNLESS PERMANENT IMPAIRMENT OF AT LEAST 15% No damages may be awarded (whether for economic or non-economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%." "26D ASSESSMENT OF PERMANENT IMPAIRMENT (1) The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the '1998 WC Act'). (2) Part 7 of Chapter 7 of the 1998 WC Act extends to an assessment of degree of permanent impairment for the purposes of this Part and for that purpose applies as if - (a) an assessment under this Part were an assessment under and for the purposes of that Part of the 1998 WC Act, and (b) a reference in that Part of the 1998 WC Act to a worker were a reference to an offender, and (c) a reference in that Part of the 1998 WC Act to a worker's employer were a reference to the Crown, and (d) section 330 (Costs of medical assessment) of the 1998 WC Act were omitted from that Part, and (e) a reference in that Part to the WorkCover Guidelines were a reference to guidelines issued under subsection (2A), and (f) the provisions of that Part applied with such other modifications as may be prescribed by the regulations. (2A) The Minister administering the CAS Act may, by order published in the Gazette, issue guidelines for the purposes of the application of Part 7 of Chapter 7 of the 1998 WC Act to offenders in respect of the same kinds of matters for which the WorkCover Guidelines may make provision for the purposes of that Part. Note : The Minister may amend or repeal an order made under this subsection. See section 43 of the Interpretation Act 1987. (2B) Without limiting subsection (2A), an order made under that subsection may apply, adopt or incorporate (whether wholly or in part or with or without modifications) the provisions of the WorkCover Guidelines, either as published or as in force from time to time. (2C) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order made under subsection (2A) in the same way as they apply to a statutory rule. (3) If there is a dispute about the degree of permanent impairment of an injured offender, a court may not award damages unless the degree of permanent impairment has been assessed by an approved medical specialist in accordance with the 1998 WC Act. (3A) A dispute about the degree of permanent impairment of an injured offender cannot be referred for assessment unless the offender has provided the protected defendant with a medical report by a medical practitioner that assesses that the degree of permanent impairment of the injured offender is at least 15% and sets out the medical practitioner's reasons for that assessment. (4) A court may, at any stage in proceedings on a claim for damages, refer the matter for assessment of the degree of permanent impairment by an approved medical specialist in accordance with the 1998 WC Act. (5) Section 151H (No damages unless permanent impairment of at least 15%) of the Workers Compensation Act 1987 applies for the purposes of an assessment under this Part of whether the degree of permanent impairment resulting from an injury is at least 15%. (6) In this section-- 'modification' includes an addition, omission or substitution. 'WorkCover Guidelines' has the same meaning as it has in the 1998 WC Act."
5. Given the terms of s 26C of the Civil Liability Act, the terms of s 151H(1) have no work to do. Nevertheless, the other subsections are relevant to the assessment required of the Approved Medical Specialist (AMS) and by the Appeal Panel.
6. Part 7 of Ch 7 of the 1998 Act deals with the referral of medical disputes for assessment and, in particular, the assessment of permanent impairment. By operation of s 322 of the 1998 Act, the assessment of the degree of permanent impairment, in this case of an offender being the plaintiff, is performed in accordance with the Workers Compensation Guidelines, which, as noted above, is taken to be a reference to the Guidelines published under s 26D(2A) of the Civil Liability Act applicable to offenders.
7. Most importantly, s 323 of the 1998 Act refers to the assessment of permanent impairment in circumstances where there is a pre-existing injury. The provision is in the following terms: "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. Note : So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (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) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section. Note : Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies."
8. Relevant to the current proceedings is the availability of an appeal, which is also governed by a provision that is contained in Part 7 of Chapter 7 of the 1998 Act. That provision is s 327 and it is in the following terms: "327 APPEAL AGAINST MEDICAL ASSESSMENT (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (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. (5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal. (6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section). Note : Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section). (7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act. (8) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause. Note : Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success."
9. There are also provisions dealing with the procedure on appeal, which are set out in s 328 of the 1998 Act. Those provisions are in the following terms: "328 PROCEDURE ON APPEAL (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. (2A) To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel."
10. It is necessary to point out a number of other aspects, without reciting the provisions. First, by operation of s 325 of the 1998 Act, a Medical Assessment Certificate is: to set out the details of the matters referred for assessment; to certify as to the assessment with respect to those matters; to set out the reasons for that assessment; and, to set out the facts on which the assessment is based.
11. Except in relation to some aspects which are presently irrelevant, the assessment is conclusive on the following matters: the degree of permanent impairment; the proportion of permanent impairment due to a previous injury or condition; whether the impairment is permanent; and, whether the degree of permanent impairment is fully ascertainable.
12. It is necessary to have summarised those provisions because the right of appeal arises only in relation to that which is conclusively presumed to be correct in proceedings and, as is clear from the terms of s 327 of the 1998 Act, which is recited above, the available grounds of appeal are confined to four grounds.
13. Given that no additional relevant information was provided to the Appeal Panel, and the Appeal Panel dealt with the matter on the basis of the material before the Medical Assessor, the only possible relevant grounds upon which an appeal could be taken to the Appeal Panel was that the Medical Assessor based the assessment on "incorrect criteria" or that the Medical Assessment Certificate contains a "demonstrable error". It is important to note, as summarised above, that a certificate includes the reasons for the assessment. [5]
14. As one would expect, there are Guidelines [6] that deal with the assessment of psychiatric injury. While, like the proper construction of legislation, the proper construction of the Guidelines requires a familiarity with all of the Guidelines, the most relevant Guidelines are those contained in cll 1.27, 1.28 and 11.10. Those clauses are in the following terms: "1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury. 1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as 'the deductible proportion' and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence. 11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker's current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI."
15. The parties rely upon Affidavits, which are largely formal and repeat the material that was relevant to the Medical Assessment, and which was before the Appeal Panel, confined to that which is appropriate for the nature of the proceedings now before the Court. The plaintiff relies upon the Affidavit of Mr Gerard Morson, affirmed 19 August 2021, and filed in Court on the same date. The defendant relies upon the Affidavit of Mr Aliasgher Karimjee, sworn 21 February 2022, and filed in Court on the same date. As is stated, the Annexures to the Affidavit contain the material relevant to these proceedings.

Orders sought

1. As earlier stated, the plaintiff seeks judicial review of the Appeal Panel decision. Formally, the plaintiff seeks orders in the nature of certiorari or, alternatively a declaration. While the wording of the first prayer in the Summons is not absolutely clear, orders in the nature of certiorari are sought in order to call up and quash the decision of the Appeal Panel and the Appeal Certificate, if that be different.
2. Further, declarations are sought declaring the Appeal Certificate and decision issued by the Appeal Panel "invalid", by which I understand the order to seek a declaration that the Appeal Certificate and/or decision of the Appeal Panel is vitiated by error. The plaintiff also seeks costs.
3. There is no appeal to the Court from the Appeal Panel decision and, to the extent that there is "invalidity", the only remedy is of the kind sought by the plaintiff in these proceedings. Some aspects of the submissions of the plaintiff suggest that the error may be jurisdictional, in which case orders in the nature of prohibition and ancillary orders in the nature of mandamus may also be available.
4. Nevertheless, the purpose of the foregoing is to note that, in the absence of an available appeal from the Appeal Panel, the only appropriate remedy is for judicial review, as has been initiated by the plaintiff.
5. While the grounds of appeal in the Further Amended Summons recite the background to the controversy, omitting the background and dealing only with the substance of the grounds, the plaintiff alleges the following: 1. Jurisdictional errors and errors of law on the face of the record in the making of the decision of the Appeal Panel; 2. Error by the Appeal Panel in failing to determine the existence of a ground of appeal allowed under s 327 of the 1998 Act; 3. The failure of the Appeal Panel to establish error before substituting its own decision; 4. Failure to set out proper and/or lawful reasons; 5. The Appeal Panel failed correctly to assess the plaintiff's pre-existing impairment pursuant to cl 11.10 of the Guidelines; 6. The Appeal Panel erred by failing to apply correctly s 323 of the 1998 Act and/or the Guidelines; and 7. As a consequence, the decision is invalid and should be set aside.

Plaintiff's submissions

1. Essentially, the plaintiff submits that, before being able to revoke the Original Certificate and substitute its own decision, the Appeal Panel was first required to determine that a ground of appeal pursuant to s 327(3) of the 1998 Act had been established, being one of the four grounds to which reference has already been made. The Appeal Panel, on the plaintiff's submission, failed to identify in its decision, whether it allowed the appeal on the basis of s 327(c) or 327(d) of the 1998 Act, each of which were relied upon by GEO in the appeal, or on some other basis. [7]
2. The plaintiff submits that the Appeal Panel's reasons seem only to express a difference of opinion from the Approved Medical Specialist, Dr Baker. The difference of opinion, assuming that to be the case, does not amount to an assessment on the basis of incorrect criteria. Nor does the difference of opinion evidence a demonstrable error in the Original Certificate. As a consequence, the plaintiff submits that the revocation by the Appeal Panel was made in error.
3. The plaintiff further submits that the reasons provided at [21] of the Appeal Panel's reasons do not provide proper or lawful reasons. The passages to which the plaintiff refers do not, it is submitted, disclose the path of reasoning, as is required by law.
4. In relation to the application of cl 11.10 of the Guidelines, the plaintiff submits that those provisions, and the Guidelines more generally, require that the assessing psychiatrist use all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function. The plaintiff submits that the Appeal Panel failed to assess the plaintiff's level of function as it was immediately prior to the alleged assault.
5. Instead, on the submission of the plaintiff, the assessment at [23] of the Appeal Panel's reasons, was based on a number of events that had occurred earlier in the plaintiff's life stretching over many years, without reference to whether the psychological effects were extant immediately prior to the injury in question. The plaintiff submits that the requirements of cl 11.10 of the Guidelines operate in the same way as the process established by s 323 of the 1998 Act.

Submissions of GEO

1. The submission of GEO maintains that the Appeal Panel was clearly seized of the issues in the appeal, given that, at [2] of its reasons, the Appeal Panel summarised the grounds of the appeal, the defendant's submissions (at [18]) and the plaintiff's submissions (at [20]). GEO emphasises that the finding of the Appeal Panel at [21] of its reasons was that the deduction applied by the Approved Medical Specialist Dr Baker was inadequate and was at odds with the available evidence. Therefore, GEO submits that the Appeal Panel made an "implicit finding of error", meaning, it seems, demonstrable error. [8]
2. As to the issues associated with the application of cl 11.10 of the Guidelines, GEO submits that the assessment of the pre-injury level of functioning does not require that the pre-injury level of functioning should be rated as being the level of functioning immediately prior to the injury, as the plaintiff has submitted. The Guidelines, according to the submissions, do not require and do not express a view as to the rating being that which was "immediately prior" to the assessed injury.
3. As a consequence, the submission of GEO is that the events and circumstances, considered by the Appeal Panel, were within its discretion to consider during the exercise.
4. Further, GEO submits that the Appeal Panel identified its path of reasoning with respect to its assessment of the plaintiff's level of functioning and refers, in particular, to [22]-[23] of the Appeal Panel's reasons. Further, on the submission of GEO, the Appeal Panel correctly identified its task by reference to cl 11.10 of the Guidelines in its reasons at [24].
5. GEO submits that the provisions of the 1998 Act, and in particular s 323(4) of the 1998 Act, prevail over the provisions of the Guidelines. To the extent that there is an inconsistency between that which is commanded by s 323(1) of the 1998 Act, and that which is required by the Guidelines, it is the 1998 Act to which the Appeal Panel must adhere.
6. The defendant submits that the Appeal Panel found that it was "able" to make assessments of the level of permanent impairment that pre-existed the injury by applying the method set out in cl 11.10 of the Guidelines. Further, the plaintiff's error in focusing upon the need for an assessing psychiatrist to use all available information to rate the injured worker's pre-injury level of functioning involves a category error, as between the information that can be used to rate and the item that is being rated.
7. The defendant's submissions then detail a number of the matters that are said to indicate the Appeal Panel's path of reasoning by reference to the categories of self-care and personal hygiene; social and recreational activity; social functioning; and, concentration, persistence and pace. The defendant, GEO, maintains that there is no error of law or jurisdiction in the Appeal Panel's application of the Guidelines.

Jurisdiction of the Appeal Panel

1. Fundamental to the issues raised in the judicial review proceedings in this Court is the issue of the jurisdiction of the Appeal Panel and its task. The jurisdiction of the Appeal Panel is necessarily granted and confined by the statute establishing it, being the 1998 Act and although not presently relevant, the Civil Liability Act. The terms governing the task of the Appeal Panel have already been recited or summarised.
2. In construing the legislation, it is necessary to set out some fundamental principles. It is the words of the statute from which the construction is drawn.
3. The terms of the statute allow the Court to determine the purpose of the statute and, in construing the statute, the legislative purpose evidenced by the terms of the statute should be achieved. Secondly, the statute should be construed in a manner that gives rise to harmonious goals. [9]
4. The Court of Appeal discussed the functions of a Medical Panel established under the 1998 Act, in the context of a medical dispute arising in relation to a worker under the Act, rather than a prisoner or offender to whom the 1998 Act applies by operation of the Civil Liability Act. [10] In the course of delivering the majority judgment, Basten JA, with whom Handley and McColl JJA agreed generally, discussed the issues that were then before the Court and the procedures on appeal.
5. The issue before the Court of Appeal in Vegan was the necessity for, and the content of, reasons for decision. Nevertheless, in the course of the discussion, Basten JA made some comments relating to the nature of the appeal.
6. In relation to the ground of appeal available on the basis of "incorrect criteria", Basten JA commented that the criterion would be referring to the tests set out in the Guidelines, where they are applicable. [11] Further, his Honour commented that factual errors would not, ordinarily, satisfy the ground of "incorrect criteria". [12]
7. His Honour's analysis proceeded from a general understanding of the nature of the appeal with which an Appeal Panel was dealing. His Honour said: "[83] The argument that the Appeal Panel exceeded its powers required a consideration of the nature of the appeal. Relevant limitations were said to be expressed by, or implied from, the following points, based on statutory elements: (1) the limited grounds of appeal provided in s 327(3); (2) the fact that the appeal was described as being 'by way of review of the original medical assessment' in s 328(2); (3) the restrictions on the use of evidence other than that not reasonably available to the appellant at the time of the medical assessment in s 328(3), and (4) the nature of the powers conferred on the Panel by s 328(5). [84] In relation to point (1), it is convenient to deal more fully with the grounds of appeal in considering below the application of the statutory provisions. However, it is clear that the grounds do not clearly reflect distinctions found in other areas of the law, such as a distinction between law and merits, or between errors of principle and the application of relevant principles, or between jurisdictional and other errors, although analogous categories could be formulated. One difficulty for the purposes of forming a clear picture of the nature of the appeal, based on the grounds, is the lack of clarity in ground (d), namely that the certificate contains 'a demonstrable error'. [85] The second point relied upon was the use of the term 'review' in s 328(2). This, it was argued, precluded a hearing de novo. That was especially so when taken in combination with the limitation on additional evidence contained in s 328(3), being point (3). This approach tended to demonstrate the difficulty with too close a dissection of the statutory language. For example, where there had been a deterioration of the worker's condition (expressly identified as a ground of appeal), it would be likely that fresh evidence would be available and admissible so that the assessment might well be by way of a hearing de novo. Indeed, the power of the Registrar to refer such a case for a fresh assessment, as an alternative to an appeal, tends to confirm that conclusion. [86] Similarly, the scope of the powers of the Appeal Panel noted in point (4), to 'confirm' the existing certificate, or to revoke it and issue a new certificate, provides little assistance as to the nature of the appeal." [13]
8. The 1998 Act refers to the process that is undertaken and the right given as an "appeal". There are appeals and appeals.
9. There have been many taxonomies that seek, not exhaustively, to define the nature of appeals that exist and the jurisdiction that is granted to a court or tribunal on appeal. Fundamentally, the nature of the appeal depends upon the statutory instrument that establishes it and that controls it.
10. In Lacey v Attorney-General (Qld), [14] the High Court dealt with that which was described, relevant to those proceedings, as three kinds of appeal and said: "[57] Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are: 1. Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance. 2. Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error. 3. Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance." (Footnotes omitted.)
11. The above taxonomy was, expressly, qualified by the necessity to examine the statute in each case. Further, the High Court made clear, the taxonomy was not exhaustive. Other proceedings have identified as many as six varieties of appeal, some of which include judicial review proceedings that are plainly not appeals, but the three varieties to which the High Court referred in the above extract are categories that are often used, albeit differently expressed from time-to-time. [15]
12. In Coal & Allied, supra, the High Court referred to the nature of different appeals and it is informative to extract that further passage, which is in the following terms: "[12] It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance. [13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. [14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. [15] The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to 'make such order as it [thought] fit'. The latter requirement indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it." [16] (Footnotes omitted.)
13. As was pointed out by Basten JA in Vegan, supra, the jurisdiction of the Appeal Panel is founded on a number of provisions. First, the nature of the jurisdiction is that of hearing an "appeal".
14. Secondly, the grounds upon which an appeal may be taken and granted are confined by the terms of s 327(3) of the 1998 Act. Some of those criteria are plainly not relevant to the current appeal.
15. They deal with the deterioration of the worker's condition and the availability of additional relevant information. It is unnecessary to deal with the qualification on the additional information that may be utilised.
16. Lastly, the Appeal Panel was required to deal with the appeal on the basis that the assessment was made on the basis of incorrect criteria and/or that the Medical Assessment Certificate contained a "demonstrable error". Further, the appeal is "by way of review" [17] to which expression the Appeal Panel referred.
17. There is a gateway provision, [18] being the satisfaction of the President that a ground has been made out, but that gateway does not bind the Appeal Panel, nor does it preclude it from holding otherwise. Nor does it relieve the Appeal Panel of the need to reason, itself, to a conclusion to that effect.
18. As stated above, the appeal is said 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". [19] There was no fresh evidence adduced in the appeal. Once the appeal has been undertaken, the Appeal Panel has the power and jurisdiction to confirm the certificate of assessment or revoke it and issue a new certificate.
19. As a consequence of the foregoing, notwithstanding the use of the term "review", it would seem that the appeal is, by its description, an appeal by way of rehearing, at least insofar as the appeal is dealing with an appeal that is based upon paragraphs (c) and (d) of s 327(3) of the 1998 Act.
20. Plainly, the jurisdiction of the Appeal Panel and the appeal itself is not "de novo". Further, it is also clear that the jurisdiction being exercised is not an appeal in the strict sense.
21. The Appeal Panel is entitled to take into account alterations in the facts. Nevertheless, at least when dealing with criteria (c) and (d) prescribed by s 327(3) of the 1998 Act, the Appeal Panel is required to find error. In Vegan, Handley JA (with whom McColl JA agreed), in his additional comments, referred to the judgment of Glass JA in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, at 297-298, and suggested that if the appellate tribunal is entitled to receive additional evidence, its jurisdiction will be original and not strictly appellate.
22. Nevertheless, as a matter of logic, it does not follow that the admission of additional evidence takes the process out of the appellate jurisdiction. When additional evidence is adduced, error may be disclosed by a finding of fact that is inconsistent with the evidence that is now available. Of course, that would not be an error of the primary judge on the material at trial. But if the appeal were confined in that way, it would be, at least in one respect, a strict appeal.
23. The difference above is immaterial in the current proceedings. No additional evidence was adduced.
24. As a consequence, the Appeal Panel must be relying only upon the application of "incorrect criteria" or that the assessment contains "demonstrable error". Each of those criteria require the Appeal Panel to identify the error of the primary assessment before it has the jurisdiction to correct it. In that sense, the appeal, at least insofar as it relates to criteria (c) and (d), is an appeal by way of rehearing.
25. The foregoing accords with the purpose of the legislation. The legislature, in establishing this process, has divided into various parts an overall judicial controversy and allowed specialist medical assessors to determine the cause and effect of injury on the whole-person impairment of a particular patient. In so doing, the medical assessor uses the medical expertise to determine the impairment and the effect of any pre-existing injury.
26. In the course of the submissions, the parties referred to the judgment of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak, [20] where the High Court discussed the role of a Medical Panel under comparable Victorian legislation to the 1998 Act. The High Court described the function of a Medical Panel as neither arbitral nor adjudicative. Its role was not to choose between competing arguments, but to form and to give its own opinion on the medical question referred to it.
27. Further, an absence of reasons as to the basis upon which the opinion has been reached is, as a result of the duty to provide reasons, an error of law. Apart from the foregoing, the issues with which the High Court dealt in Wingfoot are not immediately relevant to the issues before the Court in these proceedings.
28. The Appeal Panel in this matter was exercising an appellate function. The Medical Panel to which the High Court referred in Wingfoot was assessing the medical question referred to it, otherwise than in the context of an appeal of the kind to which the 1998 Act refers.
29. In the course of its submissions on the nature of the appeal and the proper construction of the 1998 Act, the respondent/defendant, GEO, submitted that the provisions of s 323 of the 1998 Act, and, by reference, so much of the 1987 Act to which it refers, takes primacy over the Guidelines. The Guidelines, it was submitted, are the stream and may not rise above the source. On the GEO submission, the source is the 1998 Act and, if there be an inconsistency in the approach, it is the 1998 Act, in particular that which is commanded by s 323(1), which prevails.
30. If the Court were dealing with a worker under the 1998 Act, such a submission would have strong force, assuming, for present purposes, that such an inconsistency exists. I should note at this point it is not immediately apparent how the inconsistency arises.
31. Nevertheless, even on the issue of principle, the issue before the Court in these proceedings is not quite as obvious. The 1998 Act does not operate of its own force on the current plaintiff.
32. The 1998 Act applies to the current plaintiff, by operation of Pt 2A of the Civil Liability Act. This has been stated above.
33. Moreover, the Civil Liability Act gives force to the 1998 Act, the necessary changes being made, to persons in the class of the offender. The Civil Liability Act also, by reference, gives force to the Guidelines applicable to workers under the 1998 Act.
34. In other words, the Civil Liability Act in two separate provisions gives legislative force to certain aspects of the 1998 Act (the medical assessment) and of the Guidelines relating to the medical assessment of the plaintiff. The task in construing the legislation, if there be an inconsistency, is to determine which of those two provisions in the Civil Liability Act is the leading provision and which is the subordinate provision that will give way. [21]
35. It is not immediately apparent that there was intended to be a leading and subsidiary provision within the categories of documents to which s 26D of the Civil Liability Act refers from the 1998 Act and the WorkCover Guidelines. Nevertheless, the issue is academic. In my view, no inconsistency arises between the task applied to the plaintiff by operation of s 323 and the task required by the Guidelines.
36. One other matter needs to be noted in dealing with the jurisdiction and task of the Appeal Panel (and, of necessity, the Approved Medical Specialist). That which is measured under the 1998 Act, and is sought to be measured by the application of the Guidelines, is not the injury sustained; it is the effect of the injury on the degree of permanent impairment.
37. Thus, as can be seen from the terms of s 323(1) of the 1998 Act, the AMS assesses "the degree of permanent impairment resulting from an injury". By operation of s 322A of the 1998 Act only one assessment may be made, and it is of the "degree of permanent impairment".
38. By operation of s 322, the task given to an AMS is the assessment of "the degree of permanent impairment of an injured worker", which, relevantly, for our purposes, includes the plaintiff. Further, impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment, as are impairments that result from more than one injury arising out of the same incident.
39. It is in that context that one must construe the provisions of s 323 of the 1998 Act. The effect of s 323 of the 1998 Act is, most reasonably and logically, to impose upon an assessor the task of assessing the permanent impairment resulting from a subject injury.
40. In so doing, the permanent impairment that pre-existed the impugned injury is measured in the same way as the current impairment and deducted from the current impairment to calculate the impairment arising from the injuries subject to the claim for assessment. The processes are the same whether the injury is physical or psychological.
41. To put it in terms that may be simpler to understand, a pre-existing injury that has fully resolved has no effect at the time of the injury sought to be assessed on the "permanent impairment" of the patient. Thus, for example, a physical injury that has been fully resolved is not assessed and deducted from the percentage of whole person impairment arising from the later injury.
42. This is because the "permanent impairment" created by the subject injury is not affected by the pre-existing, fully-resolved injury. No relevant "permanent impairment" has been caused by the pre-existing injury. There are detailed exceptions to account for the effect of surgery, for example, but the process is as summarised above.
43. The same approach is taken under both the 1998 Act and the Guidelines to a psychological injury. It is the effect of the psychological injury on "permanent impairment" that is assessed. If at the time of the injury for which compensation is sought is assessed, there is no "permanent impairment" resulting from any pre-existing injury, then nothing is deducted. Thus, to use an obvious example, if a person "suffers" Borderline Personality Disorder but the Disorder does not affect any impairment, there is no deduction, even though the subject injury may have triggered an effect from the pre-existing Disorder.
44. One of the major effects of the promulgation of the scheme embodied by the 1987 Act and the 1998 Act was to re-focus the assessment of damage on the impairment caused to the injured person, rather than the nature of the injury itself. This issue arises not only in circumstances where a pre-existing injury has fully resolved.
45. Thus, when dealing with a claim for an assessment of whole person impairment from a particular injury (the subject injury), in circumstances where a claimant had suffered a significant pre-existing injury, it is not the pre-existing injury that is assessed, but the whole person permanent impairment. If a worker had, for example, suffered a significant work-related lower back injury, which caused the worker to lose say a few days of work and the worker received conservative analgesic treatment for the ongoing pain, but continued to work uninterruptedly, the whole person impairment would be measured by the effect of the pain. If, as a result of the subject injury, the worker exacerbated the symptoms, even without any observable clinical alteration to the injury, it is the impairment that is suffered after the subject injury that is assessed. [22]
46. In Meeuwissen v Boden, [23] the Court of Appeal dealt briefly with some of these issues, albeit in a similar but different context, and said: "First, what must be incorrect in a material respect is 'the medical assessment' and not the certificate which results from the assessment. The subject matter of a medical assessment is a 'medical dispute': s 63(1). A 'medical dispute' is defined to mean 'a disagreement or issue to which this Part applies': s 57. The Part applies to a disagreement about one of the matters (referred to as 'medical assessment matters') set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error." [24]
47. That which is relevant from the passage to which the Court has been referred in Wingfoot, supra, is that the path of reasoning of the Appeal Panel must be established. The respondent in this application for judicial review refers to implicit findings of the error as a result of the reading of the Appeal Panel decision as a whole.
48. The Court notes and accepts that the decision of the Appeal Panel must be read as a whole. Further, the Court should not be concerned with "looseness of language" nor "unhappy phrasing". Nor should the reasons of the Appeal Panel be "construed minutely and finely with an eye keenly attuned to the perceptions of error". [25]
49. The foregoing emphasis on impairment and functioning is evidenced by the terms of cl 11.10 of the Guidelines. That clause requires an Approved Medical Specialist to use the same method of calculation for any pre-existing condition and the current condition. In so doing, the assessing psychiatrist uses all available information "to rate the … pre-injury level of functioning" (emphasis added).
50. After that process, the current level of functioning is assessed from which is subtracted the percentage of permanent impairment directly attributable to the pre-existing impairment. Further, the clause makes clear that if the "pre-existing impairment cannot be assessed, the deduction is 1/10 of the assessed WPI." [26]

Consideration

1. I have already remarked that the necessary construction of each of the 1998 Act and the Guidelines is to focus the attention of the assessment process on the impairment and its seriousness, rather than the seriousness of the injury. Often, the two are related. But that is not always the case.
2. Further, because the focus of the assessment is "impairment", it must be the impairment caused by the injury being assessed and sought to be compensated; therefore, it must be measured against the level of impairment that applied in the absence of the subject injury that necessarily requires that the impairment is measured "immediately prior" to the subject injury.
3. The datum point for the measure of impairment must be that which applied prior to the subject injury, by which the legislative scheme refers to immediately prior thereto. It is necessary to qualify that comment by the proposition that some impairments may be spasmodic and the term "immediately prior" does not mean at the very second before the injury occurred, without taking into account a temporary lull in impairment. That construction is not "inserting words", for which the respondent contended, it is construing the provision in a manner which focuses on the "impairment" and the effect of the injury sought to be compensated.
4. It is necessary then to deal with the manner in which the Appeal Panel dealt with the appeal, bearing in mind the grounds raised by the plaintiff and the grounds that are permitted to be raised, and upon which the Appeal Panel are permitted to base their decision. In so doing, it is necessary to refer, to some extent, to the Original Certificate of the AMS, Dr John Baker.
5. Dr Baker set out the current treatment of the plaintiff and the present symptoms at the time of the assessment. The Report and/or Original Certificate then dealt with the findings of mental state examination and the AMS then summarised the injuries and diagnoses. It is appropriate to set out some of that summary, which is in the following terms: "In my medical opinion [the plaintiff] suffers from Post-traumatic Stress Disorder distress, DSM5 code 309.81. He had been treated by his local medical practitioner, and mental health team. His level of functioning had deteriorated significantly from the date of onset of this injury until the date of assessment. He continued to use recommended psychiatric medication. Mr Coenradi has reached maximum medical improvement. The longer an individual suffers from psychiatric symptoms, the less likely that individual will recover fully from the psychiatric condition. Mr Coenradi had been psychiatrically ill for four years at the time of this assessment. He continues to be supported by his friends, … as well as mental health team member who visit his home. Mr Coenradi had pre-existing psychiatric conditions that were supported by evidence in the documents. These include: Mild intellectual impairment and learning disability As evidenced by needing education in a special school and having reading, writing, spelling and maths specific learning difficulties. Alcohol induced mood and psychotic symptoms As evidenced by the prior history of ongoing alcohol consumption prior to the onset of the injury. Organic mood disorder As evidenced by difficulty adjusting to the use of insulin prior to the injury Intermittent explosive disorder As evidenced by being expelled from school in Year 4. Mr Coenradi's complex psychiatric history and comorbid conditions have resulted in Mr Coenradi choosing not to accept some types of inpatient and outpatient psychiatric and drug and alcohol rehabilitation. He had chosen not to accept inpatient psychiatric treatment or drug and alcohol rehabilitation on direct questioning at the time of this assessment. Consistency of presentation Mr Coenradi's presentation was consistent with his diagnosed condition. He reported his assessable psychiatric symptoms had not entered remission at any time from the date of onset of this injury to the date of this assessment." [27]
6. The Approved Medical Specialist then proceeded to assess and/or evaluate the permanent impairment and remarked that a proportion of the loss of efficient use or impairment or whole person impairment was due to a previous injury, pre-existing condition or abnormality, which the AMS described as psychological. [28]
7. Between pp 119 and 128 of the Court Book, Exhibit A, the AMS sets out the criteria utilised in making the assessment; and gave significant detail and particulars to the manner in which the AMS has utilised the Psychiatric Impairment Rating Scale (PIRS), from the Guidelines. The AMS attached the calculation and Certificate but summarised them in the aforementioned pages.
8. At Exhibit A, Court Book, p 128 the AMS expressed his medical opinion on the pre-existing conditions suffered by Mr Coenradi. As earlier mentioned in the summary, these were described as a mild intellectual impairment and learning disability; alcohol induced mood and psychotic symptoms; organic mood disorder; and, intermittent explosive disorder, which, in part at least, referred to the plaintiff being expelled from school in Year 4. The AMS then expresses the following opinion: "The assessment of these pre-existing conditions would be very complex, so 1/10th deduction had been made in accordance with current guidelines."
9. The statement of reasons for decision of the Appeal Panel in relation to this medical dispute commences at Exhibit A, Court Book, p 143. Relevantly, it recites the medical dispute, identifies the Approved Medical Specialist and the date and nature of the Original Certificate.
10. The Appeal Panel then refers to the reliance by GEO on two grounds of appeal being the assessment being made on the basis of incorrect criteria and the Medical Assessment Certificate containing a demonstrable error. These grounds are direct reference to paragraph (c) and (d) of s 327(3) of the 1998 Act.
11. The Appeal Panel did not examine the plaintiff, even though the Approved Medical Specialist based his assessment - of each of the whole person impairment arising from this injury and his pre-existing impairment - on the applicant's history obtained from him; documentation provided with a referral; and the mental state examination conducted by him during the assessment. [29]
12. The Appeal Panel stated that the delegate was satisfied that at least one ground of appeal had been made out; the relevance of that comment is not immediately apparent, other than perhaps to state that the circumstance by which the Appeal Panel was seized of jurisdiction. Further, the Appeal Panel "conducted a review of the original medical assessment but limited the grounds of appeal in which the appeal is made".
13. In making out a ground of appeal before the delegate, the delegate is not determining the ground of appeal. The delegate is, merely, determining that a ground of appeal was arguable. It is, as earlier stated, a gateway provision.
14. The Appeal Panel, then, sets out that the WorkCover Medical Assessment Guidelines 2006; sets out the practice and procedure in relation to Medical Appeals; and that the Appeal Panel "determines its own procedures", in accordance with the Guidelines. Further, the Appeal Panel states that the assessment is conducted in accordance with the Guidelines and the AMA Guides to the Evaluation of Permanent Impairment.
15. The Appeal Panel conducted a preliminary review of the original medical assessment and determined that it was unnecessary for the worker to undergo further medical examination. Somewhat blandly, the Appeal Panel states that it has all the documents before it and has taken them into account. Similarly, it makes clear that those parts of the Original Certificate given by the AMS that the Appeal Panel considers relevant to the appeal are set out where relevant in the body of the decision.
16. The Appeal Panel also noted that it had written submissions; they had not been repeated in full, but they had been considered. The only statement of principle as to the approach it took to the appeal was set out in [11] and [12] of its statement of reasons, which were in the following terms: "[11] Procedures on appeal are contained in section 328 of the 1998 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. [12] In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement." [30]
17. The Appeal Panel then proceeds to set out the findings of the AMS as to the combined table values of WPI (Whole Person Impairment), being the assessment of the whole person impairment suffered as a result of the subject injury, less the deduction for pre-existing impairment, which was 15%. [31] The Appeal Panel then sets out the PIRS scale and criteria utilised by the AMS and, at [16] repeated the passage, extracted above, from the reasons of the Approved Medical Specialist as to the deduction for the pre-existing conditions.
18. The Appeal Panel, after stating that the kernel of the complaint is the extent of the deduction for the pre-existing injuries under s 323 of the 1998 Act failed adequately to take into account the scope and severity of the respondent's extensive pre-existing and premorbid psychological injuries, stated: "There is a significant amount of evidence before the MA [AMS] and obtained by him on examination, demonstrating that a one tenth deduction for the contribution of the pre-existing conditions to the current whole person impairment is inadequate and at odds with this evidence. The Guidelines at paragraph 11.10 state that a suitable method is to estimate the pre-existing impairment and deduct this from the current WPI."
19. The Appeal Panel, then recites the provisions of cl 11.10, which have already been recited in these reasons.
20. The Appeal Panel, then sets out, again, the "complex psychiatric history", so described by it, as already summarised and records the following "pre-existing impairment" from the Original Certificate and its reasons. [32] The Appeal Panel, then says: "These are the assessments under PIRS which the Panel is able to calculate from the MAC [the Certificate] itself in respect of the level of permanent impairment that pre-existed the injury. That is, the MAC itself supports a pre-existing impairment of at least (2, 2, 1, 2, 2, 3= 12 median class 2), which equates to 6% arising from the worker's chronic, and in one case life-long, pre-existing psychiatric conditions (including substance abuse and intellectual impairment). Notwithstanding some more severe impairments described elsewhere in the evidence the panel finds that the pre-existing impairment of 6% supported by the evidence described within the MAC is compatible with an and approximately 1/3 contribution of the pre-existing conditions to the current level of WPI assessed by the MA. Accordingly, the deduction under s 323 will be 1/3 from the overall leave [sic] of WPI of 17% assessed by the MA. This leaves 11% WPI assessed to result from the injury on 4 November 2016." [33]
21. The Court has already noted and extracted the terms of cl 1.28 of the Guidelines. These reasons also extract the provisions of cl 11.10 of the Guidelines. Each of those clauses refer to the 10% or 1/10 deduction applied by the AMS.
22. Clause 1.28 refers to the 1/10 deduction as being the deduction for the assessed pre-existing impairment "unless that is at odds with the available evidence". Clause 11.10 refers to the requirement on the assessing psychiatrist to use "all available information to rate the injured worker's pre-injury level of functioning and calculating the score by using the aggregate score for each of the existing and pre-existing impairment. Clause 11.10 refers to the use of the 1/10 deduction "if the percentage of pre-existing impairment cannot be assessed".
23. In its submissions to the Appeal Panel, GEO put that the AMS failed adequately to take into account the scope and severity of the respondent's extensive pre-existing and premorbid psychological injuries. Further, the submissions of GEO relied on the report tendered by it before the AMS, being the report of Dr Pamegiani, upon which the Appeal Panel made no comment. In my view, the Appeal Panel was correct in that approach.
24. Before embarking upon the remainder of these reasons, it is necessary to repeat the somewhat trite, but sometimes ignored, enjoining of Brennan J in Attorney-General (NSW) v Quin. [34] His Honour said: "Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. … The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. In Victoria v The Commonwealth and Hayden, Gibbs J said that the duty of the courts extends to pronouncing on the validity of executive action when challenged on the ground that it exceeds constitutional power, but the duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v. Madison: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. [Even] Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action." [35]
25. Later in his reasons for judgment, Brennan J referred to courts being asked to intervene and expand the scope and purpose of judicial review, inter alia, to provide some check on Executive Government. As his Honour noted "unfairness", in the opinion of the Court, on the merits of the administrative decision to be made, would be assuming the jurisdiction to the very thing which is to be done by the repository of the administrative power; namely, "choosing among the courses of action upon which reasonable minds might differ". [36]
26. The Court, in dealing with the application for judicial review by the plaintiff, in these proceedings, must be astute to ensure that it does not slip from the exercise of judicial review to a discussion on the merits of the issues upon which the AMS and the Appeal Panel decided.
27. Bearing in mind those limitations, it is necessary then to examine the manner in which the Appeal Panel dealt with the Original Certificate before it. An overall and careful reading of the reasons for decision of the Appeal Panel discloses that it took the view that, once the gateway had been passed and a criterion had been "made out", the function of the Appeal Panel was to "review" the decision of the AMS.
28. Whether, for example, the permanent impairment arising from a pre-existing injury or condition can be assessed accurately, or whether the evidence before the AMS is at odds with a 1/10th deduction, is an evaluation upon which reasonable specialists may differ.
29. The task of the Appeal Panel, applying the principles relating to an appeal of this kind outlined above, was to determine whether the AMS had been in error. More importantly, from the perspective of the 1998 Act, the Appeal Panel was required to determine whether an incorrect criterion had been applied or there had been a "demonstrable error".
30. Not only did the Appeal Panel not determine that there was an incorrect criterion applied, the Appeal Panel adopted the criteria and the findings of the AMS. The Appeal Panel took a different view as to the determination of whether the complex psychological history of the plaintiff could be the subject of an assessment of permanent disability that existed prior to the compensable injury.
31. A different view between specialists, even those on an Appeal Panel from an AMS, is not a sufficient basis upon which to grant an appeal. As long as the determination of the AMS was reasonably open on the material before the AMS, no error has been committed.
32. Even more importantly, in assessing the permanent impairment and in assessing the pre-existing permanent impairment, the AMS neither considered nor applied any criterion that could be said to be incorrect. The AMS did not calculate the assessment on the "basis of incorrect criteria".
33. That brings the Court to the question of the meaning of the term "demonstrable error". If it were to mean manifest error, it would arise from an examination of the result the AMS or primary decision-maker has achieved that bespeaks of error, either in the understanding of the factors or in the application of them. However, there is a difference between a "demonstrable error" and a "manifest error".
34. Ordinarily, manifest error is an error that is incapable of being identified. On the other hand, a "demonstrable error" is an error that may be demonstrated, and, as a consequence, identified. The term "demonstrable" and "manifest" may, in the context of this legislation be antonyms, rather than synonyms.
35. I have extracted each of the relevant passages from the decision of the Appeal Panel relating to the attitude adopted by the Appeal Panel to the decision of the AMS. The Appeal Panel does not determine, expressly or otherwise, that the AMS conducted the assessment on the basis of incorrect criteria.
36. Further, expressly or otherwise, the Appeal Panel does not express a view that the Original Certificate contains a demonstrable error, whatever be the meaning of the term "demonstrable". Nor does the Appeal Panel implicitly undertake that task.
37. Rather, the Appeal Panel has taken the view that the appeal, once filed and referred to the Panel, allows the Panel to assess for itself the whole person impairment of the plaintiff. In that respect, the Appeal Panel was in error. The Appeal Panel was dealing with an appeal in circumstances where error had to be disclosed either identifiably or manifestly.
38. The Appeal Panel certainly did not identify whether it allowed the appeal on the basis of paragraph 327(c), 327(d), or both of them. It was not entitled to allow the appeal on any other basis.
39. The Appeal Panel does express the view that the 1/10th deduction is inadequate and at odds with the "significant amount of evidence" before the AMS. Yet, the Appeal Panel does not identify the basis upon which it says the AMS used incorrect criteria or that the Original Certificate contains demonstrable error.
40. An assessment by an Appeal Panel cannot occur until the Appeal Panel has determined that there has been an error in the Certificate leading to the need for a further assessment. [37]
41. Moreover, unlike the AMS, the Appeal Panel did not have the benefit of the clinical observations undertaken by the AMS, which observations informed the AMS views both as to the current level of permanent impairment and the impairment arising from the pre-existing conditions. [38]
42. There has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error on which an Appeal Panel may operate and which gives it the jurisdiction to determine for itself the assessment. [39]
43. I accept the submission of the plaintiff in these proceedings that a proper reading of the Appeal Panel's assessment was not of the level of functioning, or the permanent impairment, of the plaintiff immediately prior to the alleged assault. The assessment ranges over the entirety of the plaintiff's earlier life. Examples have been given by the plaintiff and should be summarised.
44. There is a reference by the Appeal Panel to the plaintiff drinking two litres of wine from a cask per day and having poor management of his diabetes. This information came, obviously, from the documents or the clinical examination of the AMS.
45. At no point is the timing of that conduct given and, at least in relation to the diabetes issue, it seems to have occurred in 2013. Given that the plaintiff was incarcerated at the time of the injury, which was to be compensated, it is improbable that he was consuming two litres of wine per day during the course of that incarceration.
46. Further, the Appeal Panel took into account the "possibility" of an AVO under the heading social function. [40] This was exacerbated, it seems, in the opinion of the Appeal Panel, by the fact that there was no mention of any friends.
47. These events took place a significant time before the injury that was the subject of assessment. If, as may be the case, the Appeal Panel was suggesting that the recourse to violence and the absence of friends (if there were an absence of friends) was a continuing impairment in his psychiatric condition, rather than a single, isolated incident, such a conclusion would need to be identified and, in the circumstances in this issue, probably required a request for an explanation or a capacity in the plaintiff to respond to such a suggestion.
48. Returning to the taxonomy of appeals to which reference has been made, the power granted to an Appeal Panel to receive further evidence on appeal, generally accords with the notion that the appeal is properly described as an appeal by way of rehearing. [41] The decision of the AMS was required to be attended by appealable error. The decision of the AMS was an evaluative one upon which reasonable minds, including specialist minds, may differ.
49. Given that the AMS was in a far better position to understand and assess whether the historical conditions suffered by the plaintiff were "permanent" and "continuing" as at the time that the subject injury occurred, the Appeal Panel did not appropriately, by which I refer to the requirements of the law, identify the error that was said to have been committed and did not assess the pre-existing level of permanent impairment by reference to that which it knew to be continuing and permanent impairment.
50. In those circumstances, legal error has occurred and should be the subject of correction.
51. The Court makes the following orders: 1. Judgment for the plaintiff; 2. Pursuant to the provisions of s 69 of the Supreme Court Act 1970 (NSW), the Court grants an order in the nature of certiorari quashing the decision of the third defendant, being the Appeal Panel of the Personal Injury Commission made on 19 May 2021, determining that the psychological injuries sustained by the plaintiff, Anthony Coenradi, as a result of an incident on 4 November 2016, was 11%; 3. Pursuant to the provisions of s 75 of the Supreme Court Act 1970 (NSW), the Court declares that the decision of the Appeal Panel referred to in order (2) above is vitiated by error of law; 4. Pursuant to the terms of ss 65 and 69 of the Supreme Court Act 1970 (NSW), the Court orders the second defendant, the President of the Personal Injury Commission of New South Wales, to refer to a differently constituted Appeal Panel the application to appeal by the first defendant, filed with the Personal Injury Commission of New South Wales on 8 December 2020, for determination of the appeal; 5. The first dependent shall pay the plaintiff's costs of and incidental to these proceedings.

Endnotes

1. Annexure D to the Affidavit of Gerard Morson, affirmed 19 August 2021; Court Book, pp 113-132.
2. Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act"), s 323.
3. GEO Group Australia Pty Ltd v Anthony Coenradi (M1-5743/20); Court Book, p 11.
4. Appeal Panel Decision, at [21]-[25].
5. The 1998 Act, s 325(2)(c).
6. NSW workers compensation guidelines for the evaluation of permanent impairment, Fourth edition, 1 April 2016 (reissued), made under s 376 of the 1998 Act.
7. Appeal Panel Decision, at [21]-[23].
8. Submissions of GEO at [18]; Court Book, p 400.
9. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] and [78] (McHugh, Gummow, Kirby and Hayne JJ).
10. Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284.
11. Vegan, supra, at [95].
12. Ibid.
13. Vegan, at [84]-[86] (Basten JA).
14. Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10.
15. Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34; Ex parte Australian Sporting Club Ltd; re Dash (1947) SR (NSW) 283 (Jordan CJ); Coal and Allied Operations Pty Ltd v Australian industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 ("Coal & Allied").
16. Coal & Allied, supra, at [12]-[15] (Gleeson CJ, Gaudron and Hayne JJ).
17. 1998 Act, s 328(7).
18. 1998 Act, s 327(3).
19. 1998 Act, s 328(2).
20. Wingfoot Australia Partners Pty Ltd v Kocak (2014) 252 CLR 480; [2013] HCA 43.
21. Project Blue Sky, supra, at [70].
22. IAG v Keen [2021] NSWSC 113.
23. Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253.
24. Ibid, at [19].
25. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); [1996] HCA 6 at [30], citing with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456.
26. Guidelines, cl 11.10.
27. Exhibit A, Court Book, p 118.
28. Exhibit A, Court Book, p 119.
29. Exhibit A, Court Book, p 119.
30. Exhibit A, Court Book, p 144.
31. Exhibit A, Court Book, p 145.
32. Exhibit A, Court Book, p 148.
33. Exhibit A, Court Book, p 149.
34. Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21.
35. Ibid, at CLR 35-36, [17]-[19] (Brennen J).
36. Ibid, at CLR 37, [21] (Brennan J).
37. New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33] (Davies J).
38. Ferguson v State of New South Wales [2017] NSWSC 887 at [23]; NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 at [33].
39. Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [66] (Harrison AsJ).
40. Exhibit A, Court Book, p 148.
41. Coal and Allied Operations Pty Ltd v Australian industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [17] (Gleeson CJ, Gaudron and Hayne JJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2022