Finnegan v Komatsu Forklift Australia Pty Ltd

) 390 ALR 590; [2021] HCA 17 Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 NRMA Insurance Limited v Ainsworth (2011) 58 MVR 187; [2011] NSWSC 344 NSW Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 Pitsonis v Registrar of the Workers Compensation Commission & Anor (2008) 73 NSWLR 366; [2008] NSWCA 88 Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33 Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 Specialist Diagnostic Pty Ltd v Nashi [2020] NSWSC 1791 Spencer v Coshott (2021) 106 NSWLR 84; [2021] NSWCA 235 Sydney Trains v Batshon [2021] NSWCA 143 Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 Ziraki v The Australian Islamic House Liverpool Area [2019] NSWSC 1158 Category: Principal judgment Parties: Mr John Frederick Finnegan (Plaintiff) Komatsu Forklift Australia Pty Ltd (First Defendant) Representation: Counsel: J Catsanos SC and Ms L Goodman (Plaintiff) Ms C Roberts (First Defendant)

Solicitors: Ian Roche Lawyers (Plaintiff) Hall and Wilcox (First Defendant) File Number(s): 2022/00097182 Publication restriction: Nil Decision under appeal Court or tribunal: Personal Injury Commission of NSW Jurisdiction: Common Law Citation: [2022] NSWPICMP 8 Date of Decision: 14 January 2022 Before: Richard Perrignon, Dr Douglas Andrews & Professor Nicholas Glozier File Number(s): M1-W433/21

Introduction

1. This is an application, by Amended Summons filed on 19 April 2022, by John Finnegan ('the plaintiff') for judicial review of the decision of the Personal Injury Commission ('the Commission'), Medical Appeal Panel ('the Appeal Panel') dated 14 January 2022.
2. By that decision, the Appeal Panel "confirmed" the assessment of the plaintiff's whole person impairment ('WPI') by Dr Patrick Morris, an Approved Medical Specialist, because "neither error nor the application of incorrect criteria" had been demonstrated. What the Appeal Panel confirmed was that the plaintiff had suffered a "chronic adjustment disorder with anxiety" attributable to "work related stressors", resulting in an 8% whole person impairment ('WPI').
3. The consequence of the Appeal Panel's decision was that the plaintiff was not entitled to compensation for this impairment "resulting from a primary psychological injury" because the impairment was less than 15%: s 65A(3) of the Workers Compensation Act 1987 (NSW) ('the WC Act'). An assessment of less than 15% WPI also precludes the plaintiff from commencing proceedings for work injury damages arising out of the injury suffered: s 151H(1) of the WC Act; Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [3].
4. The plaintiff argues that the conclusion of the Appeal Panel was the product of error and procedural unfairness, and he seeks an order in the nature of certiorari quashing it, and remitting the matter to a differently constituted appeal panel.
5. The first defendant is the plaintiff's former employer, Komatsu Forklift Australia Pty Ltd ('Komatsu', or 'the first defendant'), and the only active defendant. It resists the relief sought by the plaintiff. The second defendants - Member R J Perrignon, Dr Douglas Andrews and Professor Nicholas Glozier (as an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('the WIM Act')) - and the third defendant - the President of the Personal Injury Commission of NSW - have filed submitting appearances.
6. In what follows, I will outline the background facts, the relevant statutory provisions (relating to medical assessments and appeals to appeal panels), the decision of the Appeal Panel and, thereafter, deal with the plaintiff's grounds of review.

Background

1. The plaintiff commenced employment with Komatsu in 2008. Initially he was employed as a Field Service Technician - Forklift, but in 2014 he was appointed as a Customer Service Supervisor. In the course of that work, and by around mid-2015, the plaintiff started to develop psychological symptoms including anxiety and stress, which progressed and worsened in 2016. On 11 March 2016, the plaintiff was stood down by Komatsu on extended leave because of concerns held about the plaintiff's behaviour and work performance. The plaintiff returned to work on 11 April 2016, but ceased on 26 April 2016 - which was the plaintiff's final day of work for Komatsu. (The plaintiff's employment with Komatsu was terminated on 22 November 2016).
2. On 26 May 2016 the plaintiff made a workers compensation claim. In the claim form submitted, the plaintiff described his condition as: "anxiety & depression" which he attributed to a Manager "being aggressive, demeaning taking control over work excessive reports required". Liability to pay compensation for that claim was denied in letters from the insurer for Komatsu dated 16 June and 8 July 2016. The plaintiff sought a review of these decisions, but the insurer confirmed them in a letter dated 8 December 2017.
3. By letter dated 29 March 2018, the insurer denied the plaintiff's claim for permanent impairment compensation.
4. On 22 February 2021 the plaintiff filed an Application to Resolve a Dispute with the Commission. In that application the plaintiff claimed compensation for weekly benefits, as well as lump sum compensation for permanent impairment. In relation to the claim for permanent impairment compensation, the plaintiff alleged to have suffered "chronic major depression and anxiety (a disease injury) arising from his employment", and he alleged that he had a 17% WPI resulting from these conditions. This was the assessed impairment made by Dr Jeff Bertucen, the plaintiff's qualified psychiatrist, in a report dated 13 June 2019.
5. The first defendant disputed the plaintiff's claim, including the claim for permanent impairment. The plaintiff was examined by a consultant psychiatrist retained by them, Dr Graham George. Dr George prepared reports dated 23 June 2016 and 16 January 2018. In the first report, Dr George diagnosed the plaintiff as suffering from "major depression with anxiety" and, when read with his second report, appeared to express doubts about whether the plaintiff's condition "has been contributed to by employment factors".

Medical assessment: the (relevant) statutory provisions

Medical assessment and medical disputes

1. A medical dispute "has the meaning given by section 319": s 4(1) of the WIM Act.
2. Where the degree of permanent impairment resulting from an injury is disputed between the parties to a claim, it constitutes a "medical dispute": s 319(c) of the WIM Act. The medical dispute arising may be referred for assessment: s 321 of the WIM Act. (The present case does not require a consideration of the extent to which the regulations have made provision for or with respect to the referral of a medical dispute concerning permanent impairment: s 321A of the WIM Act). The referral of the medical dispute is to a medical assessor: ss 321(1) and (2) of the WIM Act. A medical assessor "means a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act": s 4(1) of the WIM Act.
3. As I have earlier noted, by consent orders made on 19 May 2021, the matter was remitted to the President of the Commission for referral to a medical assessor: see [12], above. The assessment of the degree of permanent impairment of an injured worker is to be assessed in accordance with the Workers Compensation Guidelines ('the WC Guidelines'): s 322(1) of the WIM Act. Those guidelines are issued under s 376: s 4(1) of the WIM Act. There are also specific Guidelines issued that "relate to the assessment of the degree of permanent impairment of an injured worker as a result of an injury": s 377(1) of the WIM Act. They are described as: 'NSW workers compensation guidelines for the evaluation of permanent impairment', Fourth edition ('the PI Guidelines'). Having regard to the grounds of review raised by the plaintiff, it is necessary to refer to a number of the clauses within the PI Guidelines: see [24]ff, below.
4. By s 324(1) of the WIM Act, powers are conferred on a "medical assessor assessing a medical dispute" that relate to: (i) consulting with the injured worker's treating medical practitioner "or other health care professional" (s 324(1)(a)); (ii) requiring the production of "medical records or other information as the medical assessor considers necessary or desirable" (s 324(1)(b)); and (iii) requiring "the worker to submit" to examination by the medical assessor (s 324(1)(c)). Other powers conferred by s 324 deal with when the "worker refuses to submit" to examination by the medical assessor, or "in any way obstructs the examination": s 324(2) of the WIM Act.

The PI Guidelines

1. The PI Guidelines are expressed to "apply to assessments of permanent impairment conducted on or after 1 March 2021" (see cl 1.2), and were accepted by the parties to be applicable to the assessment undertaken by the medical assessor and the Appeal Panel.
2. The PI Guidelines adopt the 5th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5) "in most cases": cl 1.1. An exception is in relation to psychiatric and psychological disorders: cl 1.10. In relation to disorders of those kind, the PI Guidelines "contain a substitute chapter on the assessment of psychiatric and psychological disorders (Chapter 11) which was written by a group of Australian psychiatrists": cl 1.11.
3. The determination of permanent impairment in connection with psychiatric/psychological injury is determined in accordance with the Psychiatric Impairment Rating Scale (PIRS). The PIRS assesses the behavioural consequences of psychiatric disorders on 6 scales which evaluate functional impairment, by using class descriptors ranging from 1 to 5 in accordance with severity: cll. 11.11 and 11.12. The areas include activities of daily living (tables 11.1-11.4), as well as "concentration, persistence and pace" (table 11.5) and "employability" (table 11.6).
4. One scale used to evaluate functional impairment is: self-care and personal hygiene (cl 11.1). The two class descriptors relevant to assessing functional impairment (as raised in the grounds of review) are classes 2 and 3 - which provide: Class 2: Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food. Class 3: Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.
5. In relation to the activities referred to, they are not exhaustive descriptors, but "examples only": cl. 11.12; Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [57]-[65]; Ferguson v State of NSW [2017] NSWSC 887 at [25].
6. The rating impairment using the PIRS is a two-step procedure, involving the determination of the median class score, and then calculation of the aggregate score: cl 11.13. Once the aggregate score is reached, it is converted to a percentage score using the conversion table - table 11.7: cl 11.18. The conversion table "was developed to calculate the percentage impairment based on the aggregate and median scores": cl 11.19.

Resolution of the medical dispute

1. A medical assessor to whom a medical dispute has been referred is to give a medical assessment certificate as to the matters referred for assessment: s 325(1) of the WIM Act. The certificate is to certify the assessment, the reasons for assessment and the facts on which the assessment is based: s 325(2).
2. The status of medical assessments is dealt with by s 326. It provides: (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned-- (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.

The statutory provisions

1. Section 327 of the WIM Act deals with appeals against medical assessments. A party to a medical "dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section": s 327(1).
2. Section 327(2) makes provision for what is "appealable" under s 327(1): A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
3. Section 327(3) of the WIM Act identifies the four permitted grounds of appeal: The grounds for appeal under this section are any of the following grounds- (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the 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. The first two grounds (ss 327(3)(a) and (b)) have been described as "remedial grounds", whereas the second two have been described as "error-based grounds": Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [61] (Leeming JA, Gleeson JA and Payne JA agreeing).
5. Pausing momentarily to recap: the grounds of appeal, as ultimately advanced by the plaintiff before the Appeal Panel, were confined to ss 327(3)(c) and (d) of the WIM Act, and the Appeal Panel's conclusion reflected this (see [17], above and [45]ff, below).
6. An appeal is made by application to the President of the Commission and is not to proceed unless the President is satisfied that, on the face of the application and any submissions, at least one of the specified grounds of appeal in s 327(3) is "made out": s 327(4). This imposes a requirement on the President not to assess "the correctness of the argument but simply [an assessment] that what has been put forward is arguable", in order for the appeal "to proceed": Ballas at [72]. That state of satisfaction was reached, as I have earlier noted: see [16], above.

Some explanation of (relevant) principles relating to appeals

1. I turn now to consider the relevant grounds of review advanced by the plaintiff on appeal to the Appeal Panel. As noted earlier (see [14], above), the grounds were that the assessment by the medical assessor was made on the basis of "incorrect criteria" and that the certificate issued by the medical assessor contained "demonstrable error": ss 327(3)(c) and (d) of the WIM Act.

Incorrect criteria

1. In relation to the ground of appeal that the assessment was made on the basis of incorrect criteria (s 327(2)(c)), it has been held that this ground "must refer to such matters as the tests set out in the Guidelines, where they are applicable": Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284 at [95]; Pitsonis v Registrar of the Workers Compensation Commission & Anor (2008) 73 NSWLR 366; [2008] NSWCA 88 at [41]-[42]. In short, in light of the fact that the assessment of impairment is required to be in accordance with the PI Guidelines (s 322(1) of the WIM Act), the ground refers to an incorrect application of the fourth edition of those guidelines or AMA 5 (where picked up by the PI Guidelines).

Demonstrable error

1. In relation to the ground of appeal that the medical certificate contains a demonstrable error, the following principles have emerged. First, demonstrable error is not borne out merely because the Appeal Panel "disagrees with the opinion of the approved medical specialist": Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [87] ('Vannini'); Ballas at [56]. Secondly, demonstrable error can be "apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist": Vannini at [86]; Sydney Trains v Batshon [2021] NSWCA 143 at [43]. Thirdly, what constitutes demonstrable error was explained in Vannini at [77]-[78] thus: The effect of the statutory scheme outlined above is that the Panel had to determine the appeal brought from the medical specialist's assessment, in accordance with the limitations imposed upon it by that scheme. Commencing with the text, there are two significant limitations for present purposes. First, although the expression "demonstrable error" is not defined in the Management Act, the use of the qualifying word "demonstrable" in a gateway provision such as s 327 may be taken as intended to convey the degree of strictness of scrutiny to which the decision of the approved medical specialist may be subjected. In this regard it has been said that error alone is not sufficient and that such an error must be "material". Both of those statements accord with the context of the limited right of appeal under s 327. … Second, s 327(3)(d) requires that such an error be "contained" in the certificate; that is, the error must be apparent in the certificate of the approved medical specialist. Importantly however, there is no express limitation on the material to which the Panel may have regard when assessing whether the certificate "contains" a demonstrable error.

The decision of the Appeal Panel

1. Given the way the matter was argued by the plaintiff, rather than set out (potentially at length) the reasons of the Appeal Panel, I will simply provide a broad overview - leaving the detail of the Appeal Panel's reasons to my analysis of the grounds of review.
2. The Appeal Panel noted that the plaintiff's submissions in support of the appeal were "not clearly divided into discrete grounds of appeal" and, as a consequence, endeavoured to summarise them. It identified - in broad terms - nine complaints. It recognised that the broad contention of the plaintiff alleged error in failing to conclude that he should have been assessed as a class 3 impairment under PIRS category 11.1, not a class 2 impairment.
3. Shortly stated, the Appeal Panel dealt with the complaints (relevant to what is in issue in the current proceedings) as follows: 1. In relation to lighting: the Appeal Panel held that there was "no evidentiary basis for a finding that the conduct of the assessment was compromised by the fact that the [plaintiff's] face was in shadow" and that the Appeal Panel identified "no error in respect of this ground": Appeal Panel reasons at [8]-[11]. 2. In relation to misconstruing the 2019 report from Dr Bertucen (the plaintiff's qualified psychiatrist): the Appeal Panel held that although the medical assessor "appears to have misconstrued" a passage in Dr Bertucen's report relating to diagnosis, the "misconstruction of this passage has had no practical effect on the assessment. It does not justify the setting aside the assessment": Appeal Panel reasons at [12]-[16]. 3. In relation to 'management of finances': the Appeal Panel understood this ground to involve a failure on the part of the medical assessor to take into account "reports" - "to the effect that [the plaintiff] could not manage his own finances and that he relied upon his spouse to pay bills and purchase clothes for him": Appeal Panel reasons at 6. In connection with this complaint, the appeal panel noted that there was "no evidence that the [plaintiff] described to the [medical] assessor any inability to manage his finances"; that the medical assessor was "not obliged to assume that any inability with respect to finances which was present in 2017 remained as at… 2021 in the absence of evidence to that effect"; that there was "no evidence as to what was said by [the plaintiff]" at the examination, other than "that which is contained in the Medical Assessment Certificate itself"; and that the Appeal Panel was not satisfied that the plaintiff had told the medical assessor "that he was unable to manage his finances…": Appeal Panel reasons at [23]-[27]. The Appeal Panel concluded that "no error" had been identified: Appeal Panel reasons at [28]. 4. As to the above, the Appeal Panel noted the plaintiff's submission "that the assessor failed to take into account his report that 'his wife manages his finances and pays most bills, and that he only carries out 30% of chores, and that he wears the same pants and shirts for days until his wife complains'", but stated that the plaintiff did "not say where or when he reported those matters, or to whom" (Appeal Panel reasons at [44]). 5. In relation to the ground that the plaintiff was "unable to make significant repairs to motor vehicles", with the consequence that he should have been assessed as a class 3, and not class 2, impairment: the Appeal Panel held that, the fact that the plaintiff "was able only to work on his vehicles for an hour at a time", did not compel a finding that he was "unable to make significant repairs to a motor vehicle", so as to justify a different classification, and that the "assessment of a class 2 impairment was reasonably open in the circumstances": Appeal Panel reasons [58]-[59].

The grounds of review: introduction

1. In the Amended Summons, the plaintiff relies on four 'errors' that are said to constitute "both jurisdictional error and error on the face of the record". Those errors, shortly stated (but addressed in more detail in what follows), are said to be: first, a failure "to consider correct criteria"; secondly, "failing to consider arguments made in support of [the] appeal"; thirdly, failure "to consider all relevant material"; and, fourthly, failure to re-examine the plaintiff.
2. Before dealing with the substance of the plaintiff's grounds of review, the following matters should be noted. First, the phrase "error on the face of the record" was employed by the plaintiff; but that phrase is "at best an elliptical formulation of the ground of judicial review" that is correctly expressed as error of law on the face of the record: AAI Limited v Chan [2021] NSWCA 19 at [47] ('Chan') (Leeming JA). The distinction is important because (at a minimum) "a mere error of fact which is patent on the face of the reasons for a decision does not render the decision liable to be set aside in proceedings by way of judicial review": Chan at [47]. Secondly, the supervisory jurisdiction of the Court, under s 69 of the Supreme Court Act, is available to correct jurisdictional error, or error of law on the face of the record, and only errors in fact-finding when the error is within one of these categories: Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [8]. Thirdly, the first three grounds of review advanced by the plaintiff allege "error in point of law" without clearly identifying the precise nature of the legal error; whether there is such an error will turn upon proper analysis: "no amount of formulary" will transform something into a legal error if it is not: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527; [1990] FCA 689.

The parties' submissions

1. The Amended Summons alleges that the Appeal Panel committed error "in point of law" when it "failed to consider whether the Medical Assessor (Dr Patrick Morris) had considered the correct criteria when assessing the categories of 'self-care and personal hygiene', 'social functioning', and 'concentration, persistence and pace'". The criteria picked up by this ground is a reference to the scales within the PIRS: cl 11.11.
2. Despite alleging error in relation to three of those scales, the written submissions confined the complaint to one of those scales: 'self-care and personal hygiene' (plaintiff's submissions at [10]-[11]). The written argument which, respectfully, was not altogether easy to follow, appeared to involve the contention that, in relation to 'self-care and personal hygiene', the plaintiff should have been assessed as a class 3 impairment, and not a class 2 impairment. And, in particular, the argument appeared to be that that assessment ought to have been made because the plaintiff was "unable to properly manage his finances [which] would suggest that he could not live independently and without regular support" (plaintiff submissions at [18]).
3. In aid of this ground, the plaintiff made three related submissions. First, what was relevant to this assessment was the inability of the plaintiff to manage his finances - and there was evidence of such a disability as at 2021; secondly, the medical assessor "had an obligation to seek information from the plaintiff", and the medical assessor failed to do so; and, thirdly, the "fact" is that the plaintiff "is unable to properly manage his finances"- which was said to be suggestive that he could "not live independently and without regular support" (plaintiff's submissions at [16]-[18]).
4. As developed during oral submissions by Mr Catsanos SC, the argument was (substantially) refined, to the effect that: (a) the medical assessor was required to assess permanent impairment based upon the PI Guidelines; (b) in particular, by clause 1.6(a) of the PI Guidelines, the medical assessor was required to assess permanent impairment based upon "clinical assessment of the claimant as they present on the day of assessment taking into account the claimant's relevant medical history and all available medical information…": cl 1.6(a) of the PI Guidelines; (c) the Appeal Panel fell into error, and misdirected itself, when it held that the "assessment of the rating scales", was to be undertaken "on the basis of what the appellant told the assessor" (Appeal Panel reasons at [10]); and, (d) the Appeal Panel fell into error in finding there was no evidence of the plaintiff having an ongoing inability to manage his finances independently as at 2021.

Consideration

1. To recap: the argument of the plaintiff reduced to complaints about the way the Appeal Panel dealt with his inability to manage his financial affairs in two related respects: first, the plaintiff argued that the Appeal Panel misdirected itself by, in substance, requiring the plaintiff to identify to the medical assessor or expressly report matters, failing which it was permissible for the medical assessor to proceed on the basis that the failure to report a matter or symptom meant that there was no complaint about the matter or symptom; secondly, the plaintiff argued that the Appeal Panel made a fundamental error in finding that there was "no evidence" to support any ongoing inability of the plaintiff to manage his finances. This was argued to amount to an error of law - the plaintiff submitted that there was such evidence.

The misdirection argument

1. As I have earlier noted, the first and second parts to this argument were accepted by the parties as the correct approach (see [55], above). They were at issue in connection with whether the third part - whether misdirection had occurred - was demonstrated.
2. The plaintiff argued that error is manifest in the reasons of the Appeal Panel in the way in which it considered this ground - as follows: first, it recorded that there was "no evidence that the [plaintiff] described to the assessor any inability to manage his finances" (Appeal Panel reasons at [23]); secondly, it recorded that the medical assessor "was not obliged to assume that any inability with respect to finances which was present in 2017 remained as at examination on 13 August 2021, in the absence of evidence to that effect" (Appeal Panel reasons at [25]); and, thirdly, that they were "not satisfied that the [plaintiff] told the assessor that he was unable to manage his finances. To the extent that he told Dr Bertucen in 2017 that he was so unable, that was taken into account by the assessor" (Appeal Panel reasons at [27]).

The argument presented to the Appeal Panel

1. In my view it is important to understand the way in which this ground was presented to the Appeal Panel - which, as the Appeal Panel itself noted, was less than clearly expressed (and sub-optimally organised).
2. The ground being considered by them was concerned with what was described as "management of finances" (Appeal Panel reasons at [22]-[28]). The argument put to the Appeal Panel - as understood by it - was reflected in their reasons at 6: There was no basis for the finding that the [plaintiff] can live independently. He reported that his wife manages his finances and pays most bills, and that he only carries out 30% of chores, and that he wears the same pants and shirts for days until his wife complains.
3. That summation of the plaintiff's complaint is a reference to [3.13] of the written submissions in support of the appeal to the Appeal Panel. There the plaintiff argued that there was error in the finding of the medical assessor (essentially that the plaintiff was "able to live independently": [3.12]), followed by a submission that the plaintiff "reported that his wife manages his finances and pays the majority of the bills. The [plaintiff] stated that he only carries out 30% of the chores with the rest being done by his family".
4. The source of the 'report' was not stated in the submissions, nor is it otherwise obvious. This is plain from the reasons of the Appeal Panel: after noting the submission, the Appeal Panel said: "[The plaintiff] does not say where or when he reported those matters, or to whom": Appeal Panel reasons at [44]. The Appeal Panel noted that there was no record of the report to the medical Assessor, nor were they prepared to find that "it was communicated to the assessor": Appeal Panel reasons at [45].
5. In relation to the absence of evidence about this "report", the following should be noted: (a) the plaintiff's submissions in this Court did not suggest that there was evidence of that "report"; and (b) the submission about the plaintiff's incapacity to manage his finances independently required reference to - and findings on - other material: see [72], below.

The Appeal Panel did not misdirect itself

1. I am unpersuaded that the Appeal Panel misdirected itself. My reasons for that conclusion are as follows.
2. Whether misdirection has occurred, so as to deflect the Appeal Panel from its statutory task, is context dependent. That context includes, and is framed by, the statutory provisions governing the appeal to it, as well as the arguments of the parties. Furthermore, characterising whether error has occurred requires evaluation of the misdirection alleged against that context. In my respectful view, the plaintiff's argument in this Court tended to stray from these fundamentals.
3. Here, the focus is upon demonstrable error in the assessment performed by the medical assessor. At that point, the Appeal Panel are not themselves assessing impairment; they are charged with determining whether the error alleged has been committed by the medical assessor and is of the requisite character (demonstrable error). What, then, was the error alleged?
4. In my view, having regard to the way in which the plaintiff argued the matter before the Appeal Panel, it was that the medical assessor failed to have regard to the plaintiff's 'report' that his wife managed the finances etc. That is what was being advanced by the plaintiff, and that is what the Appeal Panel assessed in determining whether there was demonstrable error shown by the medical assessor. Put another way, what the Appeal Panel was deciding was whether there was such a 'report' and (if there was) thereafter whether the medical assessor - as the plaintiff argued - made an error in making the finding that he did.
5. Once the manner in which the ground was argued is understood, it is, in my view, clear that no misdirection error has occurred as the plaintiff alleges. Or, indeed, any error. The focus of the Appeal Panel on what the plaintiff told the medical assessor (viz., "reported") is explicable: rather than being the product of misdirection (or infelicitous expression), it is language employed to engage with the case that was made on appeal to it.
6. To return to the reasons of the Appeal Panel, and the way that the plaintiff argued this matter (see [58], above), the impugned paragraphs of the reasons must be understood in light of what I have set out. Thus: 1. In relation to Appeal Panel reasons at [23]: the reference to "no evidence that the [plaintiff] described to the assessor any inability to manage his finances", divorced from its context, might tend to suggest that the Appeal Panel may have been distracted from its task. But once placed in context the opposite is so: the statement must be understood in light of the argument that there had been a 'report' about the plaintiff's wife managing the finances etc. In that context, what is recorded is unexceptional and plainly correct: there was no evidence of the report - just the assertion in the submissions that I have noted (see [61]-[63], above). 2. In relation to Appeal Panel reasons at [25]: the reference to the medical assessor not being "obliged to assume that any inability with respect to finances which was present in 2017 remained as at examination on 13 August 2021, in the absence of evidence to that effect", is likewise in context unexceptional, for the reasons that I have just given in relation to Appeal Panel reasons at [23]. 3. In relation to Appeal Panel reasons at [27]: the reference to the Appeal Panel not being "satisfied that the [plaintiff] told the assessor that he was unable to manage his finances. To the extent that he told Dr Bertucen in 2017 that he was so unable, that was taken into account by the assessor" - is a specific and direct response to the suggestion that there was a 'report' about the plaintiff's wife managing the finances. That is its context. It does not betray any misdescription or misdirection. It is not correct to characterise it otherwise. It is certainly not open to contend that it amounts to the Appeal Panel (here or in relation to the other paragraphs that the plaintiff sought to challenge) placing any "onus" on the plaintiff to volunteer the information.

The 'no evidence' argument

1. It is clear from the reasons of the Appeal Panel that they accepted there was evidence that established that the plaintiff had impaired ability to manage his financial affairs, at least until 2017. The Appeal Panel made a finding to that effect - viz., the medical assessor "was not obliged to assume that any inability with respect to finances which was present in 2017 remained as that examination on 13 August 2021, in the absence of evidence to that effect" (Appeal Panel reasons at [25]). Further, in the way in which the Appeal Panel dealt with this ground of appeal, it - at least implicitly - accepted that an impairment of this kind could support a finding that was relevant to the classification of the impairment under table 11.1 (self-care and personal hygiene). Undoubtedly that was because evidence of an individual's inability to manage their financial affairs could readily be seen to be an aspect of 'self-care'. The first defendant, it should be noted, did not argue to the contrary.
2. The plaintiff argued that the Appeal Panel then made a series of findings, each to the same effect - viz., that there was no evidence to support a finding that any inability of the plaintiff to manage his finances that "was present in 2017 remained as at examination on 13 August 2021, in the absence of evidence to that effect" (Appeal Panel reasons at [25]). The other findings made by the Appeal Panel, argued by the plaintiff to be to the same effect, were: 1. The Appeal Panel was "not satisfied that the [plaintiff] told the assessor that he was unable to manage his finances…" (Appeal Panel reasons at [27]). 2. That although the plaintiff told Dr Bertucen, when examined on 14 November 2017, "that he leaves his finances in his wife's hands due to his inability to handle them adequately. However, that was not communicated to the assessor" (Appeal Panel reasons at [45]).
3. The plaintiff submitted that, contrary to what was found by the Appeal Panel, there was evidence that was capable of supporting a finding that he had an impaired ability to manage his finances - namely: (a) the history recorded in Dr Bertucen's 2017 report: "He is unable to handle his own finances adequately owing to confusion and disorganisation, and leaves this mostly to [his wife]"; (b) Dr Bertucen reporting, in 2019, that the plaintiff suffered moderate "impairment of attention, concentration and memory as evidenced by inability to recall written material, handle his own finances, domestic bills and budgets and personal effects"; and (c) as set out in his evidentiary statement dated 22 February 2021: "I do not believe that my condition has improved since I was terminated" (statement at [144]). The plaintiff argued that this evidence demonstrated that any impairment of his ability to manage his finances continued until 2021 and not, as the Appeal Panel concluded, 2017.

Ground 2: failure to consider arguments in support of the appeal

1. The plaintiff's second ground of review was that the Appeal Panel "failed to consider the arguments made in support of the appeal". Notwithstanding the challenge, neither the Amended Summons, nor the plaintiff's written submissions filed in support of the summons, identified the arguments the plaintiff alleges that the Appeal Panel did not consider.
2. To the extent that this ground possibly overlaps with the other grounds, it is dealt with in my consideration of those grounds. To the extent that it concerns the argument that there was a failure to address the plaintiff's 'case' in connection with table 11.5 (concentration, persistence and pace) it is dealt with next. In all other respects, I do not accept the broad contention of the ground.
3. The plaintiff's argument, in connection with table 11.5, was contained in a supplementary written submission handed up at the commencement of the hearing.
4. As developed during oral submissions, it involved the following steps: (a) the medical assessor noted that the plaintiff reported "reduced concentration but is still able to work for an hour doing repairs on his cars or machinery on his property"; (b) the medical assessor made no enquiry into what that 'work' constituted; (c) the medical assessor found that the plaintiff's impairment was mild (class 2) rather than moderate (class 3) - implicitly finding (picking up the description in class 3) that the applicant did not find it difficult to "make significant repairs to motor vehicles"; (d) that the plaintiff was "only working on his car as a hobby", which could not constitute 'significant repairs to motor vehicle'; (e) a class 3 impairment was justified because the plaintiff was unable to make significant repairs to motor vehicles, and the Appeal Panel failed to "consider and address" this argument giving rise to jurisdictional error and error of law on the face of the record: it was argued that there was a constructive failure to exercise jurisdiction giving rise to invalidity.
5. In my view there is no substance to this ground.
6. I will start with what is uncontroversial. A constructive failure to exercise jurisdiction arises "where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of a failure to address some essential matter": Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [12] (Kirk JA). An 'essential matter' can be a critical argument raised, as was explained in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 ('Dranichnikov'): "To fail to respond to a substantial, clearly articulated argument relying upon established facts" was not only a denial of procedural fairness, but a construction failure to exercise jurisdiction: at [24].

Ground 3: failure to consider all relevant material

1. The plaintiff's third ground of review was that the Appeal Panel "erred in point of law by failing to give effect to Dr Morris' misinterpretation of Dr Bertucen's report". The plaintiff's written argument, in support of this ground, was that the medical assessor "misinterpreted the report of Dr Bertucen by stating that he could not locate a diagnosis in it, when clearly there was a diagnosis…[leading] to the conclusion that [the medical assessor] fell into demonstrable error by failing to properly consider and take into account Dr Bertucen's report" (written submissions at [21]) and furthermore, the "appeal panel fell into error" by failing to give the evidence "appropriate weight" (written submissions at [23]).
2. In my view there is no substance to this ground of review.
3. It is true that the medical assessor failed to appreciate that Dr Bertucen, in his 2019 report, provided an "updated expression of diagnosis" (at that time he diagnosed the plaintiff as suffering from "chronic adjustment disorder with (current) severe social phobic anxiety"), and that the medical assessor "missed" this, and misconstrued the passage of Dr Bertucen's report where this diagnosis appeared - as the Appeal Panel held (Appeal Panel reasons at [12]-[13]).
4. Nevertheless, the Appeal Panel concluded that "the misconstruction of this passage has had no practical effect on the assessment. It does not justify the setting aside the assessment" (Appeal Panel reasons at [16]).
5. The plaintiff submitted that, in reaching this conclusion, the Appeal Panel failed to explain why it reached this conclusion and "disregards that error without foundation". I do not accept the plaintiff's submission.
6. The Appeal Panel's reasons for the conclusion were explained. That is apparent from the following (Appeal Panel reasons at [15]): The [plaintiff] does not articulate how a misconstruction of this passage (by overlooking what appears to be updated diagnosis) led to error. He does not criticise Dr Morris' diagnosis, presumably because he and Dr Bertucen both diagnosed an adjustment disorder, albeit with different descriptors. It is not suggested that any difference in diagnosis decreased the assessment of impairment, and we are not persuaded that it has.
7. In my view, as the first defendant submitted, the plaintiff has failed to identify and demonstrate error of any kind in the approach taken by the Appeal Panel.

The failure of the Appeal Panel to deal with the request that the plaintiff be re-examined

1. The plaintiff's fourth ground of review was that the Appeal Panel "failed to consider the plaintiff's request [to be 're-examined'] and that the failure to provide its reasons for not doing so" denied the plaintiff procedural fairness and resulted in jurisdictional error (Amended Summons, ground 10(d)). The first defendant, as noted further below, accepted that the reasons of the Appeal Panel made no reference to plaintiff's request to be re-examined.
2. The plaintiff's argument was, in essence, that although the Appeal Panel was not obliged to accede to the request for re-examination, it was obliged (if it did not do so) to state as much, and to provide reasons - which need not be elaborate - to explain why it reached the conclusion that it did. The failure to deal with the plaintiff's request for re-examination - at all - amounted to a denial of procedural fairness, and jurisdictional error.
3. In this last respect, the plaintiff relied upon the analysis of Adamson J in Lancaster v Foxtel Management Pty Limited [2021] NSWSC 745 ('Lancaster') to support the relief sought. In that decision, Adamson J characterised the error to be a deficiency in reasons and procedural unfairness (at [21]). That conclusion was reached because although the Appeal Panel addressed the request for a re-examination, it gave insufficient reasons for the conclusion reached. That is not quite the situation here. (I note that in Lancaster v Foxtel Management Pty Limited [2022] NSWSC 929, Basten AJ observed that a failure "to consider an integral part of the plaintiff's application may well have constituted procedural unfairness": at [7]).
4. The plaintiff also relied upon the decision in Batshon v Sydney Trains [2020] NSWSC 1266. In that case Harrison J considered an error of the kind relied upon in this case - essentially a failure to deal with the request for re-examination of an injured worker - to be a failure of the Appeal Panel to have regard to a mandatory consideration (being the request to be re-examined), and jurisdictional error - "being a failure to exercise its decision-making power in accordance with the terms on which jurisdiction was conferred": at [7].

The decisions in Lancaster and Batshon: discussion

1. In light of the plaintiff's reliance upon the decisions in Lancaster and Batshon it is appropriate to refer to those in some more detail.
2. In Lancaster, the injured worker requested "that an AMS on the Appeal Panel ought re-examine [the injured worker] for the purposes of the appeal": at [14]. The Appeal Panel, constituted under s 328 of the WIM Act, conducted a preliminary review and "determined that it was not necessary for the worker to undergo a further medical examination": at [17]. The injured worker challenged this refusal, arguing that legally inadequate reasons had been given by the Appeal Panel for this refusal. The employer conceded that the Appeal Panel had failed to consider the injured worker's request and provide reasons for its refusal. However, given that proceedings involving the exercise of the supervisory jurisdiction of the Court cannot be resolved by consent (Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 at [7]-[18]; Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 at [44]), Adamson J considered whether the concession was appropriate, and in the course of that analysis - and in concluding the concession was appropriate - said (relevantly) the following (at [20]-[21]): …The Appeal Panel had the power to re-examine the claimant by reason of s 324(1)(c) and s 324(3). The claimant was entitled to request the Appeal Panel to exercise the power and, if he did so, to have the Appeal Panel consider his request and decide whether to grant it. … The reasons need not be detailed… …all that the Appeal Panel did in the present case was to set out its conclusion that no re-examination was warranted. This is not enough to indicate to the claimant either that his application had received due consideration or why the Appeal Panel considered that no examination was warranted. In the circumstances, the cursory fashion with which the Appeal Panel dealt with the claimant's application that he be re-examined amounted to a denial of procedural fairness. This constitutes a jurisdictional error which has the effect that, as the parties agreed, the decision of the Appeal Panel ought be set aside.
3. In subsequent proceedings for judicial review, the injured worker (amongst other grounds) challenged the refusal of a further appeal panel to conduct a re-examination of him, arguing that it "gave inadequate reasons for not re-examining" him: Lancaster v Foxtel Management Pty Limited [2022] NSWSC 929 at [10]. In the course of rejecting that ground of review, Basten AJ made the following observations about medical examinations (at [46]): There is no doubt that the Appeal Panel had the power to invite the plaintiff to attend for a further clinical examination. However, for the reasons already discussed, there was no obligation to do so. Whether or not the power should be exercised turned on a matter of professional judgment. That judgment was properly to be exercised by reference to the materials available to the Appeal Panel in written form, and assessed by them, relying on their professional expertise and experience.

Consideration

1. The first defendant submitted that - implicitly - the Appeal Panel had addressed the plaintiff's request for re-examination in substance because it rejected the appeal when it "confirmed" the Medical Assessment Certificate of the medical assessor (Appeal Panel reasons at [60]). In my view, the decisions in Lancaster and Batshon stand against acceptance of this submission.
2. The first defendant next submitted that the position here was analogous to Sydney Trains v Batshon [2021] NSWCA 143 in that sufficient, albeit brief, reasons were given. I do not accept that submission either - particularly where, as here, the first defendant accepted that the reasons of the Appeal Panel make no reference at all to the plaintiff's request to be re-examined.
3. The first defendant also argued that, in substance, the plaintiff did not seek a general 're-examination', but rather a more confined request for a re-examination linked to particular errors identified in the plaintiff's appeal to the Appeal Panel. Accordingly, so the first defendant argued, there was no failure to deal with the plaintiff's request.
4. I do not accept this submission. In my view it is clear that the plaintiff made a general request to be re-examined - that is, a request that was not linked to any particular ground of appeal. This is apparent, in my view, from the Appeal form, page 2, which noted the plaintiff's request that he "be re-examined by a [medical assessor) who is a member of the appeal panel", as well as in the plaintiff's submissions to the Appeal Panel: at [3.2] and [4.3].
5. Subject to what follows in the next section of these reasons, I would have held that the failure to deal with the plaintiff's request that he be re-examined by the Appeal Panel constituted jurisdictional error - "being a failure to exercise its decision-making power in accordance with the terms on which jurisdiction was conferred" (Batshon v Sydney Trains [2020] NSWSC 1266 at [7]) or a denial of procedural fairness by the Appeal Panel's failure "to consider integral part of the plaintiff's application" (Lancaster v Foxtel Management Pty Limited [2022] NSWSC 929 at [7]). Nevertheless, as I next explain, I consider that I am constrained from reaching that conclusion.

The further submissions: no right to re-examination absent error

1. Following the hearing of the matter, each side filed further submissions.
2. The first defendant, in those submissions, drew attention to (and relied upon) a line of authority which established that a further medical assessment cannot occur until the Appeal Panel has determined that there has been an error leading to the need for a further assessment. That line of authority commenced with the decision in NSW Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 ('NSW Police Force'). In that case, Davies J expressed the limitation in these terms (at [33]): However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.
3. The plaintiff, in further submissions filed on 30 January 2023, argued that, first, the first defendant did not, in the original submissions filed (or at the hearing), raise this issue (but, I add, did not go on to suggest that this Court could not, or should not, consider the submission and the authorities); and, secondly, that there were other decisions that, at least, suggested that there was "some judicial hesitancy" in accepting the correctness of the issue decided by NSW Police Force and that some decisions are "not consistent with the requirement of preliminary error before there can be a further examination".
4. The decision in NSW Police Force, on this issue, has been followed in a number of cases, including: Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352 at [52] (Adams J); Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 at [34] (Fagan J); Ziraki v The Australian Islamic House Liverpool Area [2019] NSWSC 1158 at [74] (Harrison AsJ); Coenradi v The GEO Group Australia Pty Ltd [2022] NSWSC 864 at [134] (Rothman J). The correctness of that holding was not questioned in any of them, nor was any "judicial hesitancy" expressed.
5. The only decision where the holding in NSW Police Force was doubted was in Specialist Diagnostic Pty Ltd v Nashi [2020] NSWSC 1791. In that case Schmidt AJ noted, at [93], that the statutory basis for the conclusion reached by Davies J (which differs, I add, to the current form of the WIM Act) was not referred to. Schmidt AJ noted that the decision in NSW Police Force had been followed by other decisions: at [96]. Ultimately, however, Schmidt AJ concluded that the Appeal Panel had found error on the part of the medical assessor; hence the issue did not arise for ultimate determination: at [104] and [110].

Discretion to refuse relief

1. Notwithstanding the conclusions that I have reached, I will, albeit briefly, address whether, as a matter of discretion, it was a case to decline relief: the first defendant submitted that even if error were made out, there "is no clear basis for expecting that any further examination would result in a better outcome" thereby weighing against the granting of relief. As confirmed during submissions, the first defendant submitted that the Court should, as a matter of discretion, decline relief on this ground.
2. The first defendant argued that if the failure to deal with the plaintiff's request to be re-examined gave rise to reviewable error - whether error of law on the face of the record or jurisdictional error - the Court should, exercising its discretion, decline relief because it would be "futile": in effect, the Appeal Panel had comprehensively dealt with the grounds of appeal raised by the plaintiff, and no practical unfairness resulted in the failure to deal with the plaintiff's request to be re-examined.
3. If it were open for me to conclude that error had been demonstrated based on the failure of the Appeal Panel to deal with the plaintiff's request to be re-examined (ground 4), I would not, as a matter of discretion, withhold relief. That is for the following reasons.
4. First, the circumstances where, upon demonstration of jurisdictional error or error of law on the face of the record, relief has been refused are "rare": NRMA Insurance Limited v Ainsworth (2011) 58 MVR 187; [2011] NSWSC 344 at [98]-[99] and [103] (Rothman J) ('Ainsworth'). That this is so, reflects a fundamental principle: parties affected by the exercise of administrative power are entitled to have their rights determined in accordance with law: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [56] (Gaudron J); Ainsworth at [99]. The plaintiff, in my view, is entitled to have his claim fully and properly assessed in accordance with law. In Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, it was said that the discretion to refuse relief "is to be exercised against the background of the animating principle" so identified: at [55] (Gaudron and Gummow JJ).
5. Secondly, the critical question is whether "no useful result could ensue" - it thus directs attention to the utility of another hearing and the request to be re-examined as part of it: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; [1949] HCA 33 ('Ozone Theatres'); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [74].

Orders

1. For the above reasons, I make the following orders: 1. Order that the Amended Summons filed 19 April 2022 be dismissed. 2. Order that the plaintiff pay the first defendant's costs of the proceedings.

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: 03 February 2023