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[2026] NSWSC 1119
Supreme Court of NSW
2026-09-16
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ivanovic v Mullungeen Pty Ltd [2026] NSWSC 1119
Hearing dates: 9 September 2026
Date of orders: 16 September 2026
Decision date: 16 September 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. The Medical Assessment Certificate issued by the Appeal Panel on 23 September 2025 is set aside.
2. The matter is remitted to the second defendant for determination according to law.
3. The first defendant is to pay the plaintiff’s costs of the proceedings.
4. The first defendant and plaintiff have leave to make any submissions as to an alternative costs order within 7 days.
5. No order is made as to the costs of the second and third defendants.
Catchwords: ADMINISTRATIVE LAW — judicial review — Appeal Panel of Personal Injury Commission — whether Panel took into account irrelevant considerations — whether Panel exceeded the jurisdiction conferred by s 328(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) by providing a new diagnosis and reassessing whole person impairment — whether procedural fairness was denied by not giving the plaintiff an opportunity to respond to the new diagnosis and WPI assessment — whether the Panel failed to provide a collective decision
Legislation Cited: Workers Compensation Act 1987 (NSW), ss 8C, 8H, 65A
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 322, 323, 325, 327, 328
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: AAI Ltd v Amos [2024] NSWCA 65
Aquilina v Transport for NSW [2022] NSWSC 1310
Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Brewer v JB Hi-Fi Group Pty Ltd [2026] NSWSC 917
Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Hanna v Commissioner of Police [2026] NSWCA 120
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
LPDT v Minister for Immigration (2024) 280 CLR 321
Matheson v Baptistcare NSW & ACT [2025] NSWSC 213
McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163
Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304
Category: Principal judgment
Parties: Stefan Ivanovic (Plaintiff)
Mullungeen Pty Ltd (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant)
Appeal Panel Constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant)
Representation: Counsel:
M Daley (Plaintiff)
I Griscti (First Defendant)
Solicitors:
Capitol Legal (Plaintiff)
McCabes Lawyers (First Defendant)
The NSW Crown Solicitor (Second & Third Defendants)
File Number(s): 2025/499052
Publication restriction: No
The proceedings were commenced with the filing of a summons for judicial review on 23 December 2025. An amended summons was filed on 31 August 2026, and a further amended summons was filed in Court on 9 September 2026.
There are three defendants. The first defendant was the employer of the plaintiff when he suffered an injury on 4 April 2019. The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is the Appeal Panel that made the decision to be reviewed on 23 September 2025.
The second and third defendants have filed submitting appearances. The first defendant opposes the orders sought by the plaintiff.
The plaintiff was born in 1998. On 4 April 2019, he was working in a hotel in Chatswood. The plaintiff fell down a set of stairs and hurt his back. The fall was also the genesis of a psychological injury.
On 19 October 2023, the plaintiff made an application in the Personal Injury Commission (the PIC) for the determination of his whole person impairment (WPI). Under s 65A of the Workers Compensation Act 1987 (NSW) the plaintiff is required to have a WPI of at least 15% in order to recover compensation arising from a primary psychological injury.
On 12 February 2024, the PIC (through Member Sweeney) found that the plaintiff suffered from both a primary and a secondary psychological injury and sent the matter back to the second defendant for referral to a medical assessor. The medical assessor to whom the matter was referred, was Dr Alan Doris.
On 8 April 2024, Dr Doris issued a medical assessment certificate certifying the plaintiff as suffering an 8% WPI due to a primary psychological injury. The plaintiff appealed from this decision on 6 May 2024.
On 24 July 2024, a Medical Appeal Panel confirmed the certificate that had been issued by Dr Doris. This led to the plaintiff filing a summons for judicial review in this court on 24 October 2024. On 15 May 2025, consent orders were made setting aside the determination of the Appeal Panel and remitting the matter back to the second defendant. The second defendant then referred the matter to a differently constituted Appeal Panel.
On 27 August 2025, Prof Glozier, a member of the newly constituted Appeal Panel examined the plaintiff. On 23 September 2025, the Appeal Panel (the third defendant) issued a statement of reasons in which it concluded that the medical assessor had “erred in his application of s 65A” but then, for different reasons, also found that the plaintiff’s WPI was 8%. A certificate was issued to this effect.
The certificate issued on 23 September 2025 is the target of this judicial review application.
The two relevant statutes are the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act).
I have already mentioned the threshold is set for psychiatric injuries by the Workers Compensation Act. The WIM Act governs the workings of the medical assessors and the Appeal Panel.
The certificate issued by Dr Doris was issued pursuant to s 325 of the WIM Act. The appeal from the assessment was under s 327. The appeal procedure is governed by s 328.
Section 322 (since repealed) stated that the assessment of permanent impairment was to be made in accordance with the current Workers Compensation Guidelines. I described the workings of the guidelines, in respect of psychiatric injury, namely the psychiatric impairment rating scale (PIRS), in Brewer v JB Hi*-*Fi Group Pty Ltd [2026] NSWSC 917, from [12]:
“12. The Guidelines separate the behavioural consequences of a psychiatric disorder into six ‘scales’ or categories of functional impairment. These scales are:
(1) Self care and personal hygiene
(2) Social and recreational activities
(3) Travel
(4) Social functioning (relationships)
(5) Concentration, persistence, and pace
(6) Employability
13. Each of the scales is assessed with the worker being placed within one of five classes, each of which rates the worker’s condition according to its severity. Class 1 is the least severe. Class 5 is the most severe.
14. Once the above classification has been made, a median class score is calculated under cl 11.14 of the Guidelines (effectively the middle value of the scores).
15. After arriving at a median class score, an aggregate score is calculated and then converted to a percentage using a conversion calculator in Table 11.7 of the Guidelines. The percentage will then be the WPI.”
The Appeal Panel made three errors, each justifying the setting aside of the certificate:
It took into account irrelevant considerations in its application of the PIRS tables.
It decided matters beyond the grounds of appeal and therefore in excess of the jurisdiction conferred by s 328(2) of the WIM Act. Consequently, it failed to afford the plaintiff procedural fairness by not giving him an opportunity to respond to the ‘new’ findings.
The decision was not a decision of the Appeal Panel; rather it was a decision of Prof Glozier.
The irrelevant considerations, submitted the plaintiff, were the placing of conduct which should have been within a particular category in the PIRS scale, into a different category. Once placed in the wrong category, submitted the plaintiff, the conduct then became an irrelevant consideration.
So, for example, when Prof Glozier placed certain conduct of the plaintiff into “social and recreational activities” instead of into the “social functioning” category, he made a mis-categorisation which then had the effect, after the required scoring was conducted, to give the plaintiff the wrong WPI. Had the correct categorisation being made, according to the plaintiff, he could have received a WPI of 17%.
In stating that the plaintiff had been in placed in the wrong category, the plaintiff relied heavily on the NSW Court of Appeal decision in Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 in particular at [93]-[94]:
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
- Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
“96. Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by par 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘social functioning (relationships)’ scale.”
“Medical Assessor Glozier noted BMY continued to be positively goal-directed and tried to make some time to see his friends. BMY said many friends had dropped him because he is physically unable to do any of their previous activities and is very debilitated in his ability to get to other activities. BMY explained when he sees his friends every few weeks at a local pub, he calls an Uber, and the Uber driver can generally help him with the physical functions required in getting in and out of the car. BMY said he cannot go to any of his friends’ homes or places that have steps and therefore goes to venues that have ramps …
Medical Assessor Glozier reported that as such the impairment arising from BMY’s psychological or psychiatric symptoms is mild (class 2).”
“Medical Assessor Glozier reported BMY had lost some friends because he is not able to do physical things. However, a number of friends remained supportive of BMY, and he saw them every few weeks.”
The plaintiff’s submission, relying on Ballas, was that the history in relation to maintaining friendships should have been placed under “social functioning” rather than “social and recreational activities”.
In my view the reliance on Ballas is misplaced. Firstly, each case must be decided on its own facts. Secondly, and more importantly, Ballas was not a judicial review of an Appeal Panel decision. Ballas was concerned with the judicial review of a decision of a Delegate deciding if at least one of the grounds of a proposed appeal had been made out in accordance with s 327(4) of the WIM Act.
I think the more appropriate authority here is Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929. Basten AJ noted the above distinction with Ballas at [70]-[72]:
“70. The plaintiff also sought to obtain assistance from the reasoning of the Court of Appeal in Ballas v Department of Education. Ballas, as the plaintiff accepted, involved a different exercise, namely a challenge to a ’gateway’ decision by a delegate of the registrar under s 327(4), refusing to refer a proposed appeal to a medical appeal panel. The contention for the applicant, Ms Ballas, was that the medical specialist had wrongly taken into account, in assessing her ‘social and recreational activities’, a solitary activity which might have been relevant to other areas of impairment but did not bear upon that identified as ‘social and recreational activities. The Court accepted that submission, concluding that the delegate did not properly consider whether that contention was capable of constituting a ‘demonstrable error’. The Court held that the reasons of the delegate revealed that she had confused the concepts of ‘scales’ and ‘classes’ and had wrongly concluded that the allocation of a function to a particular scale, and then concluding that the appropriate categorisation was a matter of discretion for the medical specialist, revealed legal error which appeared on the face of the record, namely the delegate’s reasons. However, the Court then proceeded, in a passage on which the plaintiff relies, making the following observations:
‘94 Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI [whole person impairment] assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to “self care and personal hygiene”, “social and recreational activities”, “travel”, “social functioning (relationships)”, “concentration, persistence and pace” or “employability”. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.’
71. The function of the delegate under s 327(4) was to determine whether the appellant had identified a ground which was capable of constituting ‘demonstrable error’ on the part of the medical specialist. That error did not need to be a legal error. Accordingly, the assessment of a particular activity under the wrong ‘scale’ could constitute a factual error. Clearly it was an error which was reviewable by an appeal panel. As the joint reasons in Ballas sought to make clear, the exercise being undertaken by the medical specialist was evaluative, not discretionary. The use of the phrase ‘taking into account an irrelevant consideration’ might suggest an error of a kind which would be described as jurisdictional error for the purposes of judicial review, and hence applicable in the present case. However, the Court in Ballas did not say that the delegate was required as a matter of law to identify a jurisdictional error on the part of the medical specialist. It was sufficient (as the Court held) that the delegate had failed, through a misunderstanding of her proper function, to accept an argument that was capable of amounting to ‘demonstrable error’ on the part of the medical specialist.
- The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court.…” (footnotes omitted)
“64. These examples are apposite because the plaintiff complained that he had been placed in class 2, rather than class 3, with respect to social functioning. Two observations may be made about such a complaint. First, as the guidelines indicate, ‘[e]valuation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method’. It is, self-evidently, no function of this Court to review the classification by the Appeal Panel. Nor, as has occasionally been considered, would it be appropriate for this Court to identify from the reasons that the Appeal Panel has asked itself ‘the wrong question’, thereby establishing error of law. While extreme cases where error may be established can be imagined, they will be readily apparent because the Appeal Panel has confused one appellant with another or made some equivalent manifest error, sufficient to constitute an error of law on the face of the record, or jurisdictional error.
…
68. The Appeal Panel set out the relevant criteria, considered the evidence and concluded that there was no error in classifying his condition as falling within class 2. The proposition set out above does no more than state a degree of disagreement about the proper classification. It has been said that mere disagreement with the outcome does not give rise to a basis for intervention. That is true, but that is because such a ‘disagreement’ relates to a factual assessment and, in its terms, engages no legal principle and therefore cannot demonstrate error of law on the face of the record.” (footnotes omitted)
The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
The grounds of appeal advanced in the plaintiff’s submissions to the Appeal Panel only asserted demonstrable error in relation to the assessor’s method of deducting 70% for secondary psychological injury from the total WPI of 26% (i.e. attributing 30% of the plaintiff’s total psychological injury to the primary psychological condition). No issue was taken with the assessor’s overall finding of 26% WPI or his diagnosis of persistent depressive disorder with anxious distress with persistent major depressive episode (opined to be both a primary and secondary psychological injury), comorbid with a secondary injury of somatic symptom disorder. The first defendant’s submissions in response also did not take issue with these findings.
However, Prof Glozier re-diagnosed the plaintiff’s primary psychological injury as post-traumatic stress disorder and re-assessed WPI as 8%. These were not issues under appeal and there should not have been any re-agitation of them.
Firstly, Prof Glozier examined the plaintiff on 27 August 2025. He wrote a report which was considered by the Appeal Panel. Prof Glozier reached this conclusion:
“Medical Assessor Glozier said that although BMY demonstrated depressive phenomena, his current diagnostic picture is dominated by recurrent intrusive recollections of the injury, avoidance of potential triggers, sleep disturbance with nightmares, efforts to avoid thinking about the injury, as well as negative alterations in cognition and mood. Medical Assessor Glozier noted BMY reported alterations in arousal, activity of sleep disturbance, and concentration problems as opposed to actual hypervigilance or hyperstartle. Medical Assessor Glozier provided opinion that as such, BMY meets the DSM Category 5 criteria for a post-traumatic stress disorder, which Medical Assessor Glozier confirmed is BMY’s primary psychiatric injury.”
From the just quoted passage it can be seen that the plaintiff’s diagnosis has shifted from a major depressive disorder (found by Dr Doris) to post-traumatic stress disorder (found by Prof Glozier). The submissions made to the Appeal Panel, in particular by the first defendant, did not challenge the diagnosis made by Dr Doris, and did not advocate a different diagnosis, as found by Prof Glozier.
Having made the new diagnosis, the Appeal Panel did not alert the parties, in particular the plaintiff, in case the plaintiff wished to make any further submissions arising from the new diagnosis. Accordingly, the plaintiff submitted that there had been a denial of procedural fairness, which I will return to below.
The next complaint is that Prof Glozier, instead of restricting himself to the disentanglement of the 26% found by Dr Doris, went on to do his own PIRS assessment which reached the following conclusion:
“Medical Assessor Glozier provided extensive details relevant to the PIRS scale and with well-reasoned explanation, assessed BMY at class 2 for self-care and personal hygiene, class 2 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace and class 4 for employability.”
The plaintiff submitted that if the issue at hand was apportionment of the 26% WPI between primary and secondary injuries, then what it may be asked, was Prof Glozier doing reconducting a PIRS assessment. Further, if a new PIRS rating was made, then the parties should have been notified in order to make submissions. Again, there was a denial of procedural fairness.
The first defendant responded with reliance on Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191. At [80]-[81], Ward P noted that:
“80. The sole ground of appeal, as noted earlier, goes to the finding that the Appeal had exceeded its jurisdiction by not limiting itself to the grounds of appeal before it.
- The substance of the dispute between the parties on this issue is as to whether (as the appellant contends) the finding of error in relation to the Medical Assessor not considering the material referred to in Ground 2 (the reports of Drs Bisht and Akkerman and the clinical records and notes of the Hassall Grove Medical Centre) permitted the Appeal Panel to review the Medical Assessor’s original assessment of whole person impairment (including by reference to the PIRS categories) for the purpose of determining what deduction should be made, if any, by reference (relevantly) to the pre-existing physical or psychiatric injuries (there being no finding as to a secondary psychiatric injury consequent upon an earlier physical injury). The appellant argues that this issue is within the scope of the grounds of appeal that were before the Appeal Panel and that disentanglement of the contribution of the pre-existing injuries to the current impairment required (at least in the present case) a re-assessment of the current whole person impairment.”
“85. To correct the error as to the failure to consider all the material submitted by the appellant, it follows that the Appeal Panel would be required to take into consideration all that material (to the extent that it considered it significant and relevant). That material related to (or in the appellant’s words, ‘touched upon’) all of the PIRS categories that were to be taken into consideration in relation to the assessment of Mr Pombinho’s whole person impairment by reason of his psychiatric injury. I do not accept that Ground 2 is confined to being no more than a particular of Ground 4 (i.e., that it was no more than a reason that there was error as contended for by Ground 4).
- In any event, Ground 4 in my opinion suffices to bring the assessment of Mr Pombinho’s current whole person impairment within the scope of the grounds of appeal and hence within the jurisdiction of the Appeal Panel. That is because I accept the appellant’s submission that, in order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (i.e., the 24% whole person assessment made by the Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment (and then to apply that amount to the fixed starting point) without considering the starting point itself. The approach required by the Guidelines is a subtractive approach, requiring a deduction from the starting point of whole person impairment but it would make the exercise artificial if, having been required to consider all of the material that the Medical Assessor had failed to consider, the Appeal Panel could not then revisit the starting point of the assessment.”
Applied to this case, submitted the first defendant, once Prof Glozier disagreed with Dr Doris’s application of s 65A of the W**orkers Compensation Act, it was necessary, and permissible, to conduct a fresh PIRS rating.
A contrary view was expressed by Brereton JA in Aquilina v Transport for NSW [2022] NSWSC 1310, relying on the Court of Appeal decision in Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304. Brereton JA said, from [8]:
“8. The panel took that approach in reliance on the decision of Garling J in Drosd v Workers Compensation Nominal Insurer, in which his Honour had said that a Medical Appeal Panel had a statutory obligation to apply the guides once it had determined to set aside a certificate and regardless of whether the point had been raised on appeal. However, in Queanbeyan Racing Club Limited v Burton, Basten JA, with whom Leeming and McCallum JJA agreed, said that that statement was:
‘Wholly inconsistent with the understanding of the function of the appeal panel described in these reasons. It would have been impermissible for the appeal panel to reconsider an element of the assessment which had not been the subject of the appeal to it.’
And:
‘To suggest that once the panel had determined to set aside the certificate it was “‘required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the guides” and also erroneous. The fact that the panel decided to set aside the certificate did not expand the scope of its appeal function, rather setting aside the certificate was the necessary consequence of the proper exercise of the appeal function.’
9. That is because s 328(2) of the Workplace Injury Management Act provides that the appeal is to be by way of review of the original medical assessment ‘but the review is limited to the grounds of appeal on which the appeal is made.’
10. It is clear on the authority of Queanbeyan that in proceeding to consider grounds other than those raised in the appeal to it, the panel exceeded its jurisdiction. All it was entitled to do was to correct the specific error which it found, and not to embark on exploration of some other error in the medical assessor’s decision, before issuing a new certificate.” (footnotes omitted)
To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members.
There cannot be any complaint that Prof Glozier alone did a fresh assessment. However, the real issue, is whether having done a fresh assessment, and having conducted a new PIRS rating, the results should have been brought to the attention of the parties. This is a question of procedural fairness distinct from the issue considered in Pombinho.
The first defendant referred to AAI Ltd v Amos [2024] NSWCA 65 to make this submission:
“Whilst a medical assessor had an obligation to bring a critical issue or factor to the claimant’s attention, the Review Panel in the circumstances was not obliged to put to the claimant its thought process, or to alert the claimant to the consequences of describing his symptoms in a particular way.”
“In the context of a medical assessment conducted by a medical assessor or a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] (Leeming JA, Beazley P and Basten JA agreeing), citing Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81.”
In my view the determinative point is not whether the Panel, through Prof Glozier, could conduct a re-examination and a new PIRS rating, but rather whether, having done so, it should have been brought to the attention of the parties in order to invite further submission. I think that a new PIRS rating is a “critical issue”, as referred to in Amos. Once the rating had been done, then procedural fairness, I think, required the parties to be informed. The same applies to the new diagnosis (of PTSD) which should have prompted an invitation for further submissions.
This conclusion is reached against the background that the Appeal Panel was concerned, by the terms of the appeal to it, to examine the issue of disentanglement of the 26% that had been found by Dr Doris. A completely new WPI falls outside of this brief. However, I think Pombinho allows for a new assessment, including a new diagnosis and consequent PIRS rating, but once done, I think procedural fairness should have led to the new diagnosis and rating being told to the parties with an invitation to make further submissions.
In LPDT v Minister for Immigration (2024) 280 CLR 321 the High Court said at [12]:
“12. Where the jurisdictional error alleged is one concerned with the process of the decision making, such as a denial of procedural fairness, what must be proved by the applicant will depend upon the precise error alleged to have occurred in the decision-making process, having regard to any relevant statutory provisions within the applicable legislative framework…”
“15. … Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is ‘no easy task’ for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.”
Had the plaintiff been put on notice about the new PIRS rating he might have wished to make submissions as to the particular scores he received. In addition, it is to be noted that Prof Glozier’s diagnosis of PTSD was the first such diagnosis made by any of the doctors who had assessed the plaintiff.
In Hanna v Commissioner of Police [2026] NSWCA 120 at [88], Leeming JA stated:
“88. It is uncontroversial that the duty to accord procedural fairness to the applicant attaches to it an entitlement ‘to know the case sought to be made against him and to be given an opportunity of replying to it’: Kioa v West (1985) 159 CLR 550 at 582; [1985] HCA 81 …”
In Frost v Kourouche (2014) 86 NSWLR 214 at [41]; [2014] NSWCA 39 Leeming JA referred to the obligation to afford procedural fairness being one of “practical justice”.
Noting that the new PIRS rating dictated the plaintiff’s WPI, the denial of further submissions was, in my view, not practical justice. The plaintiff was denied the right to respond to two crucial matters going to the ultimate certificate, his diagnosis and his PIRS rating, both of which were not part of the intended scope of the appeal.
It is important to note that while Dr Doris and Prof Glozier both made an ultimate assessment of 8% WPI, this similarity is misleading and their paths to the 8% WPI were quite different.
Dr Doris actually arrived at a WPI of 26% but then reduced this down to 8% because he attributed 70% of the WPI to a secondary psychological injury. A secondary psychological injury “means a psychological injury to the extent the psychological injury arises as a consequence of, or secondary to, a physical injury”: s 8H of the W**orkers Compensation Act. A primary psychological injury “means a psychological injury that is not a secondary psychological injury”: s 8C of the Workers Compensation Act.
Prof Glozier, because of his different diagnosis, found:
“all of the whole person impairment rated is caused by the primary psychological injury and I can identify no aspect of this impairment that could be attributed solely to the secondary psychological injury.”
In effect therefore the comparison is not between Dr Doris’s 8% and Prof Glozier’s 8%, but rather between Dr Doris’s 26% and Prof Glozier’s 8%, because these are the respective total WPIs found by the two assessors. Looked at this way, the importance of informing the parties of the new diagnosis and PIRS rating comes into focus.
I am therefore satisfied that there was a denial of procedural fairness which in turn entitles the plaintiff to have the certificate of 23 September 2025 set aside.
The plaintiff requested that if I came to this conclusion, that I should simply substitute a WPI of 26% instead of remitting the matter back to the PIC. I do not think I should do so because I have not found fault in the Review Panel’s assessment, rather I have only decided that the plaintiff should have been entitled to make further submissions to the Panel.
It is not strictly necessary for me to decide this issue because of my decision in relation to procedural fairness. However, in case I am wrong about procedural fairness I think it appropriate to continue.
Section 328(1) of the WIM Act states:
(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows—
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.
In this case the Panel was constituted by Ms Jacqueline Snell (a member and a lawyer), Prof Nicholas Glozier (a medical assessor) and Dr John Lam-Po-Tang (a medical assessor).
The plaintiff’s point was that scrutiny of the Appeal Panel’s reasons led to an inference that the statement of reasons was not a product of a hearing by the three members of the Panel, but rather a simple adoption by the other two members of Prof Glozier’s report. This report had emanated from Prof Glozier’s examination of the plaintiff.
The plaintiff referred me to McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609 at [23]; [2008] NSWCA 163 where Giles JA said:
“… The plain purpose of s 63 is that the collegiate professional expertise of three or more medical assessors should be applied in the review, resulting in an assessment which is more likely to be correct and to be accepted by the parties to the medical dispute.”
Section 63 is the Motor Accidents Compensation Act 1999 (NSW) equivalent of s 328. It also requires a panel made up of a member and two medical assessors. The passage quoted above from McKee is restricted to the views of the medical assessors. The member, both under the motor accidents legislation and the WIM Act, are not required to bring any medical knowledge to bear. They obviously have a different role, no doubt related to compliance with legal requirements and probably the drafting of the reasons.
The plaintiff pointed to passages in the Appeal Panel’s reasons such as:
“70. It is evident from Medical Assessor Glozier’s examination report that he conducted his examination of BMY on 27 August 2025 in a thorough manner.
…
- Medical Assessor Glozier provided extensive details relevant to the PIRS scale and with well-reasoned explanation, assessed BMY at class 2 for self-care and personal hygiene, class 2 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace and class 4 for employability.
…
- Medical Assessor Glozier’s PIRS ratings relevant to his examination of BMY on 27 August 2025 or 2,2,2,2,3 and 4, providing a median class score of 2 and an aggregate score of 15, resulting in 8% WPI.”
The plaintiff submitted that the statement of reasons given by the Appeal Panel were no more than an adoption of the views of Prof Glozier and did not involve a collective decision of the Panel.
The plaintiff submitted that Prof Glozier’s examination report goes “far beyond the scope of a ‘medical re-examination’ as permitted by the legislation and includes not only findings on examination, but also findings as to diagnosis, causation, reasoning, and class allocation of the PIRS categories.” The plaintiff’s point was that Prof Glozier was going beyond the medical examination he was permitted to conduct and extended to the making of a medical assessment which should have been done by the Panel collectively.
I accept that inferences may be drawn but do not accept that the only reasonable inference arising from the reasons is that the member and the other medical assessor took no part in the ultimate decision. The member of course is not called upon to make any medical conclusion and the member’s involvement may be limited to commentary on legal matters and to the formulation of the statement of reasons. Even if that is all that occurred in this matter, that still constitutes an involvement, in fact an important involvement, in the Appeal Panel’s reasoning.
As for the other medical assessor, there is no direct evidence of the doctor’s involvement, but I think it taking something of a quantum leap to suggest there was no involvement. Importantly, the Appeal Panel’s reasons are not Prof Glozier’s report. The report has been brought into the framework of the reasons. The fact that the reasons incorporate Prof Glozier’s views does not mean they are simply a differently worded expression of his report.
In the alternative, the plaintiff submitted that the Panel had not provided sufficient reasons, or a path of reasoning, to explain “why the findings of the single medical assessor, Prof Glozier, were thereby the findings of the MAP.”
The plaintiff submitted that it was not enough to simply make comments like Prof Glozier’s report was “thorough”. There needed to be a specific statement of reasons as to why Prof Glozier’s report should have effectively become the Panel’s statement of reasons. I think this is essentially the same point as made above, the use of Prof Glozier’s report being the basis for an inference that the other two members of the Panel did no more than simply adopt the report.
Again, I am of the view that the inference is not compelling, it is not the only reasonable inference and excludes the involvement of the other two members of the Panel without any cogent evidence to that effect.
Finally, I think that a simple ‘I adopt’ or ‘I agree’ with Prof Glozier’s report would in any event be sufficient. An adoption or agreement implies that consideration had been given to the report, and a positive conclusion or agreement had been reached.
The plaintiff’s third point would therefore have failed.
The plaintiff submitted that if I was to remit the matter to the PIC that it should be to a differently constituted Appeal Panel. I have not however found that the Panel made any error other than in not informing the parties about the new diagnosis and the new PIRS rating.
I think it appropriate to simply return the matter to the second defendant leaving it to the second defendant, at its discretion, to refer the matter back to the same Appeal Panel or to send the matter to a freshly constituted panel. Obviously if the former option was chosen, the Appeal Panel would invite the parties to make further submissions.
I make the following orders:
The Medical Assessment Certificate issued by the Appeal Panel on 23 September 2025 is set aside.
The matter is remitted to the second defendant for determination according to law.
The first defendant is to pay the plaintiff’s costs of the proceedings.
The first defendant and plaintiff have leave to make any submissions as to an alternative costs order within 7 days.
No order is made as to the costs of the second and third defendants.
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Ivanovic
Mullungeen Pty Ltd
[2026] NSWSC 917
(2020) 102 NSWLR 783
(2014) 86 NSWLR 214
(2024) 280 CLR 321
(2008) 71 NSWLR 609
(1985) 159 CLR 550