Department of Education v Mansfield

Legislation Cited: Workers Compensation Act 1987 (NSW), s 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 323, 327 and 328

Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Australian Retailers Association and Others v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707
Asia Symbol (Guangdong) Paper Co, Ltd v Anti-Dumping Review Panel and Another [2019] FCA 792; 370 ALR 108
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365
Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32
McKee v Allianz (2008) 71 NSWLR 609; [2008] NSWCA 163
Matheson v Baptistcare NSW & ACT [2025] NSWSC 213
Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90
Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200
Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334
Secretary, Department of Communities and Justice v Taane [2024] NSWSC 54
Wang v Australian Securities and Investments Commission [2019] FCA 1178
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

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

Category: Principal judgment

Parties: Secretary, Department of Education (Plaintiff)
Jonathan Mansfield (First Defendant)
President of the Personal Injury Commission of NSW (Second Defendant)
Richard Perrignon, John Baker and Michael Hong as a Medical Appeal Panel (Third Defendant)

Representation: Counsel:
J Hart (Plaintiff)
E Grotte (First Defendant)
Solicitors:
Bartier Perry Lawyers (Plaintiff)
Ian Collins (First Defendant)
Crown Solicitors Office (Second and Third Defendants)

File Number(s): 2024/00401072

Publication restriction: Nil

JUDGMENT

1. By a further amended summons dated 1 April 2025, the plaintiff challenges by way of judicial review a decision dated 30 July 2024 by an appeal panel (Appeal Panel) constituted by s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act).

2. The plaintiff contends that the Appeal Panel’s decision is vitiated either by jurisdictional error or error of law on the face of the record.

3. For the following reasons, the amended summons will be dismissed, with costs.

Background matters summarised

4. The first defendant (who is the only active defendant in the proceedings) commenced employment as a high school teacher in 2001. It is uncontroversial that, due to personal stressors from 2012, the first defendant suffered from conditions of alcohol use disorder and adjustment disorder, which subsequently developed into persistent depressive disorder. With regard to a psychological injury in 2018 which had a deemed date of injury of 1 June 2018, he alleged that his condition was caused in part by the plaintiff’s requirement that he teach a subject for which he was not qualified. The first defendant ceased teaching sometime in early 2018 but then returned to teach in November or December 2018. On 11 April 2019 he was placed on a teacher improvement program, but he ceased to teach again on 12 April 2019.

5. On 19 July 2019, the first defendant returned to work with the plaintiff and was again placed on the teacher improvement program. He completed two weeks of that program before ceasing to work on 9 September 2019. He has not worked since.

6. In 2020, the first defendant commenced proceedings in the Workers Compensation Commission in respect of the 2018 injury. Following a medical examination on 11 June 2020, Dr Bench issued a medical assessment certificate (MAC) dated 16 June 2020. Dr Bench diagnosed the first defendant as having persistent depressive disorder with anxious distress and alcohol use disorder. The MAC issued by Dr Bench assessed the first defendant as suffering 8% whole person impairment (WPI) in respect of the 2018 injury. This assessment was confirmed on appeal by a different Medical Appeal Panel on 21 October 2020.

7. Also in 2020, the first defendant commenced proceedings in the Workers Compensation Commission claiming weekly compensation in respect to the 2018 injury. He obtained an award in his favour. The plaintiff was required to pay him weekly compensation from 1 November 2019 to date, on the basis that he was totally incapacitated for work and had no current earning capacity.

8. On 21 May 2021, the plaintiff informed the first defendant that his work performance was unsatisfactory, and he was invited to show cause as to why he should not be dismissed. On 24 September 2021, the first defendant’s employment with the plaintiff was terminated.

9. On 22 February 2023, the first defendant made a claim for permanent impairment compensation under s 66 of the Workers Compensation Act 1987 (NSW) (1987 Act), claiming to have 22% WPI. This claim related to an injury which was initially stated to have a deemed date of injury of 24 September 2021. The claim was disputed by the plaintiff.

10. Also in 2023, the first defendant referred the dispute to the Personal Injury Commission (PIC) seeking both payments of weekly compensation and compensation for permanent impairment. This gave rise to the determination on 11 December 2023 by PIC Member Sweeney. He found that the first defendant suffered a psychological injury, being an exacerbation or aggravation of a pre-existing disease within the meaning of s 4(b)(ii) of the 1987 Act, resulting from the first defendant’s dismissal on 24 September 2021 (2023 injury).

11. Member Sweeney found that the 2023 injury was deemed to have been sustained on 22 February 2023, being the date of the first defendant’s claim. Member Sweeney remitted the matter to the President of the PIC for referral to a medical assessor to assess the first defendant’s psychological injury deemed to have occurred on 22 February 2023 as a result of his employment before that date, bearing in mind the previous injury certified by Dr Bench in the 16 June 2020 MAC.

12. This led to the first defendant being examined by another medical assessor, Dr Yeates. He assessed the first defendant as suffering 19% WPI. He found that the first defendant had an alcohol use disorder and a persistent depressive disorder. Dr Yeates found that both the alcohol use disorder and persistent depressive disorder were pre-existing conditions which warranted a deduction in accordance with s 323 of the 1998 Act. He applied a deduction in the amount of “2/10th” which was intended to take into account the 2018 injury as well as the first defendant’s pre-existing conditions which predated both the 2018 and the 2023 deemed injuries.

13. By a decision dated 18 April 2024, a delegate determined that she was satisfied that the plaintiff’s claim that Dr Yeates had erred in his application of s 323 of the 1998 Act was capable of being made out. Consequently, the plaintiff’s appeal was referred to the Appeal Panel.

14. In the pro forma Form 10 dated 21 March 2024, the plaintiff stated that it did not ask for the first defendant to be re-examined by a medical assessor who was a member of the appeal panel. It also confirmed that it did not seek to rely on the availability of additional relevant information that was not available before Dr Yeates or could not reasonably have been obtained before Dr Yeates’ medical assessment.

15. The plaintiff provided detailed written submissions in support of its claim that Dr Yeates had made an assessment based on incorrect criteria by not applying the State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) (Guidelines). It is desirable to set out the following parts of the plaintiff’s submission to the Appeal Panel as they are relevant to ground 1 of the judicial review challenge (footnotes omitted):

5.29 It has been acknowledged in a number of Medical Appeal Panel Decisions that the adoption of this method [in paragraph11.10 of the Guidelines] may at times be at odds with the proper application of S323 of the 1998 Act and produce results inconsistent with the application of S323. In circumstances where that occurs, regard must then be had to the strict terms of S323 itself as the Guidelines are subordinate legislation.

5.30 The Medical Assessor has made no attempt to apply the method set out in the guidelines for the making of a deduction for pre-existing impairment and in fact made no mention of the method set out in paragraph 11.10 of the Guidelines, being content merely to make a statement that the extent of the deduction was difficult or costly to determine; but that the available evidence was that the deductible proportion was large and deduction of 1/10 was at odds with the available evidence. (Paragraph 11b. MAC).

5.31 The appellant submits that this was a matter where it was both appropriate and possible to apply the method for deduction due to pre-existing injury or condition set out in paragraph 11.10 of the Guidelines.

5.32 There was in fact very substantial evidence before the Medical Assessor as to the worker’s mental state and level of functioning following the 2018 injury and prior to the 2023 injury. It is submitted that such evidence would have enabled the Medical Assessor to accurately determine impairment adopting the PIRS rating methodology.

5.33 The appellant submits that the best evidence and evidence which the Medical Assessor ought to reasonably to have adopted was the evidence of the worker’s functioning and consequent level of impairment as set out in the MAC of Dr Bench dated 16 June 2020.

5.34 In addition, the appellant submits that regard could have been had to the Findings of the Medical Appeal Panel on 21 October 2020 which confirmed the MAC of Dr Bench.

5.35 Further, the appellant submits that regard could have been had by the Medical Assessor to the assessment by Dr Ben Teoh in his report (prepared for the worker) dated 12 February 2020 (Reply P5) and his assessment of permanent impairment of 17% WPI resulting from the 2018 injury.

5.36 Finally, the appellant submits that the Medical Assessor could have had regard to the statements made by the worker as to the effects of the 2018 injury and his subsequent levels of functioning set out in his statements dated 4 October 2019 and 31 July 2020 (Reply P1 & 3 respectively).

5.37 In summary the appellant submits that by not adopting the method for determining pre-existing impairment set out in paragraph 11.10 of the Guidelines the Medical Assessor has used incorrect criteria and fallen into error in doing so.

5.38 Had the Medical Assessor properly adopted the guidelines it is submitted he should have concluded that the extent of the pre-existing impairment was at least 8% WPI which he should then have deducted from his assessment of 19% WPI resulting in the issue of a Certificate certifying that the worker suffered 11% WPI as a result of the 2023 injury.

16. The parties before the Appeal Panel agreed that Dr Yeates’ arithmetical calculations were in error and that if a “2/10th” deduction was applied, this should have produced an assessment of 15% WPI rather than 16% as assessed.

17. The Appeal Panel concluded at [55] of its reasons that Dr Yeates had not explained why “2/10th” was the appropriate deduction as opposed to some other amount, hence his path of reasoning was not sufficiently exposed.

18. Accordingly, the Appeal Panel proceeded to reassess the first defendant’s claim. It issued a replacement MAC dated 27 August 2024, assessing the first defendant as suffering 17% WPI. This figure was arrived at after the Appeal Panel applied a 10% deduction under s 323(2) of the 1998 Act in circumstances where the Appeal Panel said that the extent of the deduction was difficult to determine and that a 10% deduction was not at odds with the available evidence.

19. At [62], the Appeal Panel identified the issue it needed to determine as being “what part of current impairment is due, not to the 2023 injury, but to the combination of pre-existing conditions and the 2018 injury”. It explained that because the first defendant was already totally incapacitated for work before the events which occurred in 2021, the required assessment was difficult to determine.

20. The Appeal Panel then reasoned as follows at [64] (noting that the plaintiff relies on this paragraph in claiming that the Appeal Panel misconceived its statutory task):

As the amount of the deduction is difficult to determine, a deduction of 1/10th is available unless it is at odds with the evidence. There is no medical evidence before us which distinguishes between the impairment caused solely by the injurious events of 2021 and the impairment caused by the combination of the pre-existing two disorders and the 2018 injury. That is because the assessments and reports of Dr Bench, Dr Teoh and on whose opinion the worker relied, and Dr Clayton Smith on whose opinion the insurer relied, all pre-dated the events of 2021.

21. The Appeal Panel’s reasons need to be understood with reference to s 323 of the 1998 Act and the relevant parts of the Guidelines. For convenience, those provisions are as follows:

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.

(5) (Repealed)

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.

22. Paragraph 11.10 of the Guidelines states that:

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.

Disposition

23. I shall endeavour to address the parties’ primary submissions in this part of the reasons for judgment.

Legislative scheme summarised

24. The relevant legislative scheme was recently summarised by Basten AJ in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213 at [7]-[19]. That summary need not be repeated.

Inter-relationship between s 323 and paragraph11.10

25. The inter-relationship between s 323 of the 1998 Act and paragraph11.10 of the Guidelines has been considered in many cases, including Cole v Wenaline Pty Ltd [2010] NSWSC 78; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365; Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334; Secretary, Department of Communities and Justice v Taane [2024] NSWSC 54. The relevant principles were summarised by Mitchelmore JA in Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 at [74]-[75]:

The focus of s 323 is the degree of permanent impairment resulting from an injury. Section 323(1) requires a deduction for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality. The exercise to determine the extent of that deduction is provided for in the Guidelines at [11.10], as explained by Ward P in Pombinho. The Secretary did not submit that the decision of Simpson AJA in Marks (No 2), in which her Honour held that [11.10] of the Guidelines was invalid where a pre-existing condition was asymptomatic, applied to the present case, in which the plaintiff was, on the medical assessor’s findings, symptomatic before the onset of the work-related stressors in March 2019.

In order to ascertain what, if any, proportion of the plaintiff’s current level of WPI was due to her pre-existing condition, the Guidelines required the medical assessor to undertake an assessment of the plaintiff’s pre-injury level of functioning, by reference to the PIRS. If that could not be assessed, the Guidelines prescribed that the deduction was to be one-tenth of her assessed WPI (it was not submitted that this was inconsistent with s 323(2)). The plaintiff’s complaint to the Appeal Panel was that the medical assessor did not approach the issue consistently with the Guidelines. Instead, notwithstanding his conclusion that the extent of the deduction was difficult or costly to determine, he settled on a deduction of 50% on the basis of an assessment on his part of what proportion of her psychological impairment – that is, her injury – could be attributed to her pre-existing condition.

26. Several cases have approved Schmidt J’s identification in Elcheikh of the following three steps under s 323:

(a) first, ascertain the extent of the resulting impairment (noting that in the present case it is uncontested that it is 19% WPI); (b) secondly, determine whether the pre-existing condition contributed to the impairment (there is no dispute in the present case that both the first defendant’s pre-existing conditions that were sustained around 2012 and the 2018 injury have contributed to the resulting impairment); and (c) thirdly, if it did, determine what proportion of the impairment was due to the pre-existing condition.

Ground 1

27. The plaintiff claims that the Appeal Panel misconceived its statutory task and erred in applying the third step, which involved determining the proportion of the current degree of permanent impairment which was due to pre-existing conditions. It contends that this error amounts either to jurisdictional error or error of law on the face of the record.

28. In substance, the plaintiff’s case is that the Appeal Panel was bound to assess the deduction in relation to the percentage of pre-existing impairment by applying paragraph11.10 of the Guidelines and that there was ample evidence on which to base such an assessment.

29. For the following reasons, I reject those claims.

30. First, the plaintiff’s judicial review challenge relates only to the third of the three steps described above, namely the determination of the proportion of the impairment which is due to pre-existing conditions. I do not accept that the Appeal Panel misunderstood or misconceived its statutory task under either s 323 of the 1998 Act or paragraph11.10 of the Guidelines. It is plain that the Appeal Panel appreciated the need to address those provisions. This is hardly surprising given the significant prominence of the method set out in paragraph11.10 of the Guidelines in the plaintiff’s written submissions to the Appeal Panel (see at [15] above).

31. The plaintiff initially argued that this clause was given only a “passing reference” in [3(f)] of the Appeal Panel’s reasons. This submission was properly withdrawn in oral address after the matter was raised by the Court. Paragraphs 52 to 76 of the Appeal Panel’s reasons all respond in one way or another to the plaintiff’s complaint (which was summarised in [3(f)]) regarding the Appeal Panel’s determination of an appropriate deduction.

32. In determining the amount of the deduction, the Appeal Panel was well aware of s 323 of the 1998 Act and paragraph11.10 of the Guidelines. Although no explicit reference is made to those particular provisions in [56] to [76], it is notable that the Appeal Panel used phrases which clearly echo those provisions. Thus, for example, in [61] of the reasons the Appeal Panel said that it considered that the “amount of the deduction is difficult to determine”. This reflects the language in s 323(2) of the 1998 Act and the reference there to the contingency that the “extent of a deduction … will be difficult or costly to determine … ”. Similarly, in [64], the Appeal Panel stated that because the amount of the deduction “is difficult to determine, a deduction of 1/10th was available unless it is at odds with the evidence” (see also similar language at [73]). Again, this reflects the terms of s 323(2) of the 1998 Act, as well as the final sentence of paragraph11.10 of the Guidelines.

33. Secondly, the plaintiff points to [64] of the Appeal Panel’s reasons (see at [20] above) as revealing the alleged misunderstanding of the relevant statutory task. But, fairly read, that paragraph simply addresses why the Appeal Panel considered it was difficult to determine the amount of the deduction. Earlier, in [62] of its reasons (see at [19] above), the Appeal Panel described what it saw as its statutory task in the particular circumstances here, namely determining what part of the first defendant’s current impairment was due, not to the 2023 injury, but to the combination of the 2012 pre-existing conditions and the 2018 injury. The language used in [62] correctly reflects the first sentence of paragraph11.10 of the Guidelines which refers to the need to measure “the proportion of all WPI due to a pre-existing condition” in order to measure the impairment caused by a work-related injury or incident. The Appeal Panel then added at the end of [62] that it was difficult to determine the relevant proportion in circumstances where the first defendant was already totally incapacitated for work before the injurious events of 2021.

34. The plaintiff emphasised the fact that at [64] of its reasons, the Appeal Panel referred to evidence which “distinguishes between the impairment caused solely by the injurious events of 2021 and the impairment caused by the combination of the pre-existing two disorders and the 2018 injury”. Similarly, the plaintiff highlighted the Appeal Panel’s use of the word “distinguished” in [73] of its reasons. I do not accept those submissions. The Appeal Panel’s reasons need to be read fairly and as a whole. Two references to “distinguishing” do not indicate that it misconceived its statutory task. I am comfortably satisfied that the Appeal Panel properly understood its decision-making function in respect to both s 323 of the 1998 Act and paragraph11.10 of the Guidelines.

35. Thirdly, the Appeal Panel found that the amount of the deduction in respect of the extent of pre-existing impairment was difficult to determine. The basis for this finding was explained by the Appeal Panel at [61] of its reasons, where the following three elements were emphasised:

(a) Dr Yeates had found that only the persistent depressive disorder had been aggravated by the 2023 injury, notwithstanding that the existing alcohol use disorder also persisted. (It can be added here that Dr Yeates also observed on page 8 of his reasons that “it is difficult to disentangle the persistent depressive disorder symptoms, which share many elements of the psychiatric sequelae of alcohol use disorder”). (b) Earlier, on 20 November 2020, Arbitrator Homan made a finding that, since 1 November 2019, the first defendant had no work capacity as a result of the 2018 injury, when viewed together with events which occurred when he attempted to resume work in 2019, including being placed on the teacher improvement program. (c) Those events occurred well prior to the stressors in 2021, which were found to give rise to the 2023 injury.

36. The Appeal Panel explained why it considered there was no medical evidence which distinguished between the impairment caused solely by the 2021 events and the impairment caused by the combination of the pre-existing disorders relating to persistent depression and alcohol abuse, and the 2018 injury. This was primarily because the assessments and/or reports of persons such as Dr Bench, Dr Teoh and Dr Clayton Smith all pre-dated the 2021 events. I discern no reviewable error in the Appeal Panel’s analysis of the limited utility of those medical reports.

37. Moreover, the Appeal Panel found that the opinion set out by Dr Barrett in her report dated 27 April 2023 was medical evidence which supported a significant increase in symptoms and impairment as a result of the 2023 injury, particularly in circumstances where Dr Barrett did not distinguish between the effects of the 2023 injury and the pre-existing disorders and 2018 injury. I discern no reviewable error in these parts of the Appeal Panel’s analysis.

38. In explaining why it did not consider that it could assess the percentage of pre-existing impairment based on the evidence before it, the Appeal Panel also referred to Dr Potter’s report dated 1 February 2023. It noted that Dr Potter did not distinguish between impairment caused by the 2018 injury and that caused by the 2023 injury. But the Appeal Panel also noted that Dr Potter had found that there had been a deterioration in the first defendant’s impairment since the assessment by Dr Bench. Again, no reviewable error is revealed in this analysis.

39. Having regard to all this material, the Appeal Panel concluded that the available evidence, with all its limitations, was not at odds with a 1/10th deduction. After also referring to the certificates of capacity issued from 3 June 2021 to 18 October 2021, the Appeal Panel stated at [73]:

None of this evidence, though brought into existence after the commencement of the dismissal process which was found to have caused the 2023 injury, is inconsistent with a deduction of 1/10th because even though some of them evidence an exacerbation of symptoms as a result of the dismissal process, none otherwise distinguish between its effects and the effects of the 2018 injury and pre-existing conditions.

40. Finally, the essence of the plaintiff’s complaint under ground 1 is that the Appeal Panel misconceived its statutory task because it should have applied the method in paragraph11.10 of the Guidelines and not applied the default position referred to in both s 323(2) and in the final sentence in paragraph11.10. I discern no error in the Appeal Panel’s approach, let alone a jurisdictional error or an error of law which manifested itself in the Appeal Panel’s reasons. Both s 323(2) and paragraph11.10 require the decision-maker to address the question whether or not it “will be difficult or costly to determine the extent of a deduction” (s 323(2)) or whether the percentage of pre-existing impairment “cannot be assessed” (paragraph11.10 of the Guidelines). That is what the Appeal Panel did here.

41. It is notable that s 323(2) contains an express example of why the extent of the deduction “will be difficult or costly to determine”, namely where there is an absence of medical evidence. There may, of course, be other reasons why a decision-maker comes to a conclusion that it will be difficult or costly to determine the extent of a deduction.

42. The central point, however, is that the decision-maker (whether that be a medical assessor or an appeal panel), will invariably be required to exercise clinical judgement in determining whether the default position applies. In the present case, the Appeal Panel plainly used its clinical judgement in concluding that the method in paragraph 11.10 could not be applied, hence the default provision was engaged.

43. The importance of clinical judgement was highlighted by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] in describing the role of a medical panel under Victorian workers compensation legislation:

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

44. Although under the Victorian regime, the medical panel was constituted by three medical practitioners, I consider that the observations above apply equally to the Appeal Panel here.

45. It is also important to note that, contrary to the plaintiff’s implicit contention, there was no obligation on the Appeal Panel to address and analyse every part of the evidence before it. As Giles JA stated in McKee v Allianz (2008) 71 NSWLR 609; [2008] NSWCA 163 at [38]:

The members of the appeal panel bring their expertise to that task, and the confirmation or the new certificate embodies their professional opinion as to the matters referred for assessment in whole. In order to come to its decision to confirm the medical assessor's certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment.

46. Clinical judgement was necessarily involved when the Appeal Panel reviewed and evaluated the medical and other relevant evidence before it with a view to determining the proportion of impairment due to the pre-existing conditions and 2018 injury, as opposed to the 2023 injury. The Appeal Panel went to some lengths to explain at [61] of its reasons why the medical evidence (including the certificates of capacity used from 3 June 2021 to 18 October 2021) failed to address that proposition and were therefore of no utility.

47. It may well be that another appeal panel could come to a different conclusion in the exercise of its clinical judgement. But that possibility is insufficient to establish a jurisdictional error or an error of law on the face of the record here.

48. It is notable in this regard that the plaintiff has not raised a claim of unreasonableness in the legal sense in the Appeal Panel’s decision nor suggested that the decision is unintelligible or irrational.

49. It is also notable that the Appeal Panel was not asked by the plaintiff to re-examine the first defendant. Thus, the Appeal Panel’s task on an appeal under s 327 of the 1998 Act was necessarily framed by the medical and other evidence which was placed before it, the consideration of which required the Appeal Panel to exercise clinical judgement (which is implicit in the constitution of an appeal panel under s 328(1) of the 1998 Act, which requires two of the three members to be medical assessors).

50. For these reasons, ground 1 is rejected.

Ground 2

51. Ground 2, which is a no evidence ground, is directed primarily to the Appeal Panel’s reasoning at [75] and [76].

52. At [75], the Appeal Panel stated that, even if a deduction of 1/10th was at odds with Dr Bench’s MAC, it would be “unsafe” to deduct the 8% WPI assessed by Dr Bench “because that would involve an assumption that there had been no improvement in the worker’s condition at all from the date of his assessment on 11 June 2020 and 25 May 2021, when the evidence discloses that [the first defendant] was distressed by the commencement of the dismissal process which constituted the 2023 injury”.

53. The plaintiff claimed that this is inconsistent with statements in several of the medical reports that there had been no remission in the first defendant’s symptoms during the period 11 June 2020 to 25 May 2021 (Relevant Period). The plaintiff pointed to the following material:

(a) Statements in Dr Bench’s MAC dated 16 June 2020, which described the first defendant’s symptoms at that time and concluded that according to the psychiatric impairment rating scales (PIRS), that the rating for the first defendant’s social and recreational activities was “Class 2”, taking into account the fact that he spent some of his social time reading and watching sports on television. The plaintiff submitted that Dr Bench assessed that the first defendant had “a relatively good degree of functioning in some certain areas”. (b) The plaintiff referred to a report by Dr Teoh dated 12 February 2020 (which report pre-dates the Relevant Period but was reviewed by Dr Bench). Dr Teoh had noted that the first defendant’s condition “is likely to remain the same, and could fluctuate depending on the outcome of his employment”. Dr Bench noted Dr Teoh’s statement that the first defendant had been “certified by his general practitioner as unfit to work at all but fit to receive communication to deal with the issues at work”. Dr Teoh gave the first defendant a PIRS rating of “Class 3” with respect to social and recreational activities. He also stated in respect of the first defendant’s employability, that he was “fit for suitable duties” and gave him a rating of “Class 3” in respect of this item.

In his subsequent report, Dr Bench said that he did not agree with Dr Teoh’s assessment “of moderate impairment in social and recreational activities”, pointing to the fact that the first defendant continued to attend a café once or twice a week on an independent basis, which suggested no more than “a mild impairment”. Similarly, he did not agree with Dr Teoh’s assessment of a moderate impairment with respect to employability. Dr Bench added that, in his opinion, “there is certainly a lack of clarity”.

(c) The plaintiff also referred to a subsequent report dated 24 September 2020, by Dr Teoh. It submitted that “there is no material difference at all between the history that Dr Teo [(sic)] takes in February 2020 and September 2020”. (d) The plaintiff also pointed to reasons dated 20 November 2020 by Adjudicator Homan. Adjudicator Homan reviewed various medical assessments of the first defendant (including Dr Teoh’s reports dated 12 February 2020 and 24 September 2020 and Dr Bench’s assessment). Adjudicator Homan concluded that, from 1 November 2019 onwards, the first defendant had no current work capacity. This conclusion was reached after considering Dr Teoh’s assessment that the first defendant was fit for suitable duties, which Adjudicator Homan assessed as being inconsistent with that part of Dr Teoh’s report dated 12 February 2020 in which he stated that the first defendant was “not fit to work at all at this stage”. (e) The plaintiff then submitted that the disciplinary process commenced with its letter dated 21 May 2021, where the first defendant was informed that there were allegations of unsatisfactory performance against him and that possible disciplinary actions included dismissal. (I interpolate here that I do not accept that this letter marks the commencement of the dismissal process. In his report dated 12 February 2020, Dr Teoh noted that the first defendant had said that he had been told by the Principal of the school that “if he failed the formal improvement program, his employment could be terminated”. Thus, the threat of dismissal was in the first defendant’s mind at an earlier time than 21 May 2021.) (f) The plaintiff referred to a second letter dated 16 September 2021 which also formed part of the disciplinary process, in which the first respondent was given an opportunity to resign from his position and was told that if he did not do so he would be dismissed. (g) The plaintiff also pointed to a report dated 11 November 2021 by Rolf Reed, a consulting psychologist. The plaintiff emphasised that Mr Reed concluded that the first defendant’s dismissal had made matters worse and that his depression and anxiety “have been significantly aggravated and exacerbated”. (h) The plaintiff pointed to other reports which, although post-dating the Relevant Period, reviewed some of the earlier reports. The plaintiff submitted that these subsequent reports indicated that the first defendant’s impairment was the same or worse than that found by Dr Bench. Thus, for example, in a report dated 1 February 2023 by Dr Potter (psychiatrist), Dr Potter assessed the first defendant as having a 23% WPI. With reference to Dr Bench’s assessment on 11 June 2020 of 8% WPI, Dr Potter stated that the first defendant “has made significant deteriorated moves since that time, for example as recorded in the self-care and personal hygiene” (referring to the PIRS ratings). (i) The plaintiff pointed to a report dated 9 May 2023 by Dr Barrett. Dr Barrett recorded the first defendant’s statement that “his symptoms have ‘spiked’ although he acknowledges there was no period of remission of his symptoms from 2018 onwards”. The plaintiff submitted that this material was “directly contrary to what the appeal panel finds that we just don’t know what happened in that period”. The plaintiff emphasised that, later in his report, Dr Barrett stated that the history provided by the first defendant “is of persistent symptoms, without remission, since at least 2017 or 2018 up until the time of termination”. (j) The plaintiff also drew attention to the reasons dated 11 December 2023 by Medical Assessor Sweeney and his statement at [61] of those reasons that the “applicant has had persistent symptoms without remission since at least 2017”. (k) Finally, the plaintiff emphasised various part of the reasons dated 22 February 2024 by Dr Yeates, who found that there was a degradation in functioning subsequent to Dr Bench’s assessment.

54. The plaintiff contends that the Appeal Panel either failed properly to consider the evidence before it or there was no evidence to support its finding that it was unable to conclude there was no improvement in the first defendant’s condition in the Relevant Period. The plaintiff contends that the deterioration in the first defendant’s condition is reflected in the difference between Dr Bench’s assessment of 8% WPI in 2020 and Dr Yeates’ assessment of 19% WPI in 2023. The plaintiff also relied on evidence of deterioration in the reports from Drs Potter, Barrett and Teoh.

55. The Appeal Panel reasoned at [76] that the first defendant’s unsuccessful attempts to return to work despite his 2018 injury indicated that his symptoms “waxed and waned”. Thus, even though the first defendant remained off work from 1 November 2019, the Appeal Panel said that it was not in a position to assume, or find, that there was no improvement at all up to May 2021, in the absence of contrary positive medical evidence. This reasoning was directed to explaining why the Appeal Panel did not accept the plaintiff’s submission that it should simply deduct Dr Bench’s assessment of 8% WPI.

56. I am not persuaded that the Appeal Panel erred in the manner claimed by the plaintiff. It adequately explained why it considered it would be “unsafe” simply to deduct 8% from the overall current WPI of 19%. That approach would involve an assumption that there had been no improvement in the first defendant’s condition in the Relevant Period. Applying its clinical judgement, the Appeal Panel was not satisfied that the evidence before it warranted the making of such an assumption.

57. I accept the first defendant’s submission that the plaintiff’s complaint under ground 2 is properly characterised as a disagreement with the outcome of the Appeal Panel’s deliberations, without truly identifying an error of law on the face of the record or a jurisdictional error. The plaintiff’s judicial review challenge invites the Court to apply an unduly intensive scrutiny of the Appeal Panel’s decision and reasoning. It is a thinly veiled attempt to have the Court conduct an impermissible merits review.

58. In its written submissions, the plaintiff contended that “[f]indings of fact must be supported by logically probative evidence”, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 367 and that there “must be a factual basis for findings”.

59. It appears that the plaintiff has misconceived the nature and scope of the no evidence ground of judicial review. First, the only case on no evidence included in the plaintiff’s list of authorities is the Court’s decision in Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90. It is true that there are references in that appeal to “no evidence” at [87]ff of Ward JA’s judgment (with whom Macfarlan and Hoeben JJA agreed). But those passages relate to the no evidence ground in a statutory appeal from a decision of McDougall J, who adopted a referee’s report. Those passages cast no light on the nature and ambit of no evidence as a ground of judicial review of administrative action.

60. Secondly, in a judicial review context the ground of no evidence attaches to findings of fact and not expressions of opinion (see, for example, Australian Retailers Association and Others v Reserve Bank o**f Australia (2005) 148 FCR 446; [2005] FCA 1707 at [581]-[582] per Weinberg J and Asia Symbol (Guangdong) Paper Co, Ltd v Anti-Dumping Review Panel and Another [2019] FCA 792; 370 ALR 108 at [93] per Robertson J). I consider that the Appeal Panel’s statements at [75] and [76] of its reasons are not properly described as findings of fact, but rather as expressions of opinion, which draw upon the Appeal Panel’s clinical judgement and involve an evaluative exercise.

61. Thirdly, even if, contrary to the above, the statements were regarded as involving findings of fact, the no evidence ground at common law requires that there be no probative evidence or other material to justify the findings made (see A**ustralian Retailers Association at [575] per Weinberg J). In W**ang v Australian Securities and Investments Commission [2019] FCA 1178 at [68] Bromwich J correctly made the point that material which defeats the no evidence ground of review must be legally probative, which is an issue that goes to capacity and not weight (see generally, Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [91] per Hayne, Heydon, Crennan and Kiefel JJ).

62. In my view, there was sufficient probative material before the Appeal Panel to justify its judgement or opinion that it was not in a position to assume, or find, that there was no improvement at all in the first defendant’s condition during the Relevant Period. The Appeal Panel was entitled to have regard to all the relevant evidence before it, not simply the material which has been emphasised by the plaintiff regarding the first defendant’s impairment during the Relevant Period. Although there was some material which indicated that there was no remission during the Relevant Period, there was other probative material which indicated that the first defendant’s condition during that period may have fluctuated. For example, Dr Teoh noted in his 12 February 2020 report (which is a few months before the Relevant Period) that, although the first defendant’s condition was likely to remain the same, it “could fluctuate depending on the outcome of his employment”. Similarly, Dr Teoh noted that the first defendant’s general practitioner had certified him as unfit to work at all, but he was nevertheless fit to receive communications concerning the issues at his work.

63. There was additional material before the Appeal Panel which highlights the uncertainty regarding the extent of the first defendant’s impairment. This is reflected, for example, in Dr Bench’s comment that “there is certainly a lack of clarity”.

64. The relevant medical evidence was not consistent. As noted above, different PIRS ratings were arrived at by different assessors, each exercising his or her own clinical judgement.

65. As the first defendant correctly pointed out in oral address, Dr Yeates commented that it was “difficult to disentangle the persistent depressive disorder symptoms, which share many elements of the psychiatric sequalae of alcohol use disorder”. The possibility of the first defendant’s condition fluctuating is also necessarily implicit in Dr Barrett’s reference to the first defendant’s symptoms having “spiked”.

66. Having regard to all these matters, I reject the plaintiff’s claim under ground 2 that there was no evidence to support the Appeal Panel’s reasons and analysis in [75] and [76]. Nor has the plaintiff established that the Appeal Panel failed properly to consider the evidence, particularly having regard to the relevant principles summarised at [45] above.

67. Finally, and importantly, even if (contrary to the above) ground 2 has substance, it is difficult to see how the alleged error is material unless the plaintiff also succeeds in establishing ground 1. That is simply because, as the Appeal Panel made clear at the commencement of [75] of its reasons, the reasoning in [75] and [76] was expressed to be in the alternative, as is reflected in the phrase “Even if, contrary to our finding … ”. Thus, the Appeal Panel’s reasoning which is challenged by ground 2 was not determinative of its decision.

Conclusion

68. For all these reasons, the Court makes the following orders:

69. The further amended summons dated 1 April 2025 is dismissed.

70. The plaintiff pay the first defendant’s costs.

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