Justice Health & Forensic Mental Health Network v Nichols

Extension of time

1. Firstly, I will deal with the application for extension of time to file the summons. The defendant does not oppose the application. In short, the plaintiff's solicitor Michele Franco (aff 11.4.22) explained on 30 June 2021 a Medical Assessor gave a Medical Assessment Certificate finding the plaintiff had 15% Whole Person Impairment ("WPI"). The Medical Assessor arrived at this degree of impairment by finding the plaintiff suffered 17% WPI and deducting an assumed, rather than an actual, 10% for pre-existing condition, pursuant to s 323(1) of the Workplace Injury Act.
2. On 26 July 2021, the plaintiff filed an Application to Appeal Against a Decision of Medical Assessor under s 327 of the Workplace Injury Act. The appeal was in time under s 327(5). On 13 October 2021 a Delegate of the President of the Personal Injury Commission gave a decision under s 327(4) of the 1998 Act refusing to allow the appeal to be heard by the Appeal Panel. On 3 December 2021 the plaintiff filed a summons seeking judicial review of the decisions of the Delegate and the Medical Assessor. Time under r 59.10 of the Uniform Civil Procedure Rules 2005 to commence proceedings without leave against the Medical Assessor expired after 30 September 2021.
3. The plaintiff has correctly availed herself of the provisions for an appeal to the Appeal Panel under the Act. Hence, I grant an extension of time to file the summons up to and including 3 December 2021.

Background

1. In 2008, the worker commenced employment with the Justice and Forensic Mental Health Network New South Wales ("the employer") as an enrolled nurse.
2. In April 2017 the worker returned to work at Silverwater minimum-security correctional facility following long service leave. On returning to work, the worker found that she had a new nursing unit manager, Mr Mohammed Trad.
3. The worker claims that within a few days of returning to work Mr Trad started making inappropriate comments.
4. The worker claims that Mr Trad would also "target, harass or micromanage" her.
5. Over the course of 2017, the worker claims that the relationship between her and Mr Trad deteriorated to a significant degree and that Mr Trad was often abusive and rude to her.
6. Towards the end of February 2018, the worker ceased working as an enrolled nurse at Silverwater.
7. On or about August 2018, following retraining for a clerical role, the worker worked part-time (approximately four hours a day, three days a week) at Parklea correctional facility.
8. On or about 12 October 2018, the worker ceased working in any capacity.
9. On or about 12 June 2020, the worker made a claim on the workers compensation insurer for $56,860 for 22% WPI.
10. On 2 October 2020, the insurer issued a notice disputing the worker's claim under s 78 of the Workplace Injury Act. The insurer accepted that the worker was suffering from a psychological or psychiatric condition following aggravation of a pre-existing condition at work. However, the insurer did not accept that the injury was caused by bullying and harassment incurred during the course of employment. Further, the insurer did not accept that a deduction for pre-existing condition under s 323 should not be made when calculating WPI.
11. On 19 February 2021, the worker filed an application to resolve the dispute in the Personal Injury Commission for injury with a deemed date of injury of 27 February 2018. In the alternative, the nature and conditions of the worker's employment from 2009 to 12 October 2018, claiming $56,860 for 22% whole person impairment for psychiatric and psychological disorders.
12. On 24 March 2021, the Personal Injury Commission, by consent of the parties, made orders granting the worker leave to amend her application so that the description of her injury read: The Applicant was involved in interpersonal conflict with her colleagues and management during the course of her employment. The Applicant suffered an aggravation of injuries following a failed return to working suitable duties in October 2018…
13. The consent orders also provided for the matter to be referred to a medical assessor to assess the degree of permanent impairment, if any, as a result of psychological injury occurring on the deemed date.
14. On 30 June 2021, Dr Wayne Mason, psychiatrist ("the Medical Assessor"), issued a Medical Assessment Certificate ("MAC") for 15% WPI supported by reasons.
15. On 26 July 2021, the insurer made an application to appeal the decision of the Medical Assessor.
16. On or about 16 August 2021, the employer filed submissions in response.
17. On 13 October 2021, Ms Kathryn Camp, as Delegate of the President of the Personal Injury Commission ("the Delegate") gave a decision pursuant to section 327(4) of the 1998 Act that the appeal was not to proceed.
18. On 3 December 2021, the employer filed a summons in this court.

The relevant legislation

1. The relevant provisions of the Workplace Injury Act are as follows: "322 Assessment of impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose. … (4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made. 323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. [my emphasis] ... 325 Medical assessment certificate (1) The medical assessor to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the President and is to - (a) set out details of the matters referred for assessment, and (b) certify as to the medical assessor's assessment with respect to those matters, and (c) set out the medical assessor's reasons for that assessment, and (d) set out the facts on which that assessment is based. … 326 Status of medical assessments (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. 327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds - … (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out. … 328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. …"

The relevant guidelines

1. For completeness, I have included paragraph 11.10 of the NSW Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed that states: Pre-existing impairment 11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Preexisting impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker's current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.

The law

1. Both parties referred to the decision of Cole v Wenaline Pty Ltd [2010] NSWSC 78 ("Cole"). In Cole, the worker had initially suffered an injury to his back in 1976 for which he had undergone surgery in the form of an L4/5 discectomy. In October 2005, he suffered an injury at work while he was maneuvering a 44-gallon drum of oil and fuel. As a result of that Injury, the worker underwent a further discectomy at the same level as the previous surgery. The majority of an Appeal Panel had made a deduction of one half pursuant to s 323 of the Workplace Injury Act. In granting relief, Schmidt J assessed the Appeal Panel as having incorrectly applied a s 323 deduction at [28]-[30]: "[28] It is apparent from the way in which the majority reasoned to its conclusion, that it proceeded on the basis of an assumption. The assumption was that even though the treatment of the first injury to the plaintiff's spine in 1976 had succeeded, with the results to which the dissenting member of the panel referred, the very fact of the existence of that prior injury, 'irrespective of outcome', resulted in an impairment which must have contributed to the impairment which arose after the second injury. As the majority explained, it was of the view, 'hypothetically', that if the plaintiff had been examined before the second injury, given his history, he would have been assessed as suffering from a 10% of whole person impairment, under AMA 5. [29] The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment [30] Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, Irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'."
2. In Cole, her Honour further explained the correct legal reasoning to be observed when applying a deduction under s 323 of the Workplace Injury Act when she said at [38]: "[38] What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section."
3. In Elcheikh v Diamond Formwork (NSW) Pty Limited (in liquidation) [2013] NSWSC 365 ("Elcheikh"), again, Schmidt J considered the application of s 323 of the Workplace Injury Act and confirmed that a deduction under that section involves a three step process. At [126] it reads: "[126] As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is: Firstly, what the extent of the resulting impairment is. Secondly, whether the pre-existing condition contributed to the impairment. Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition."
4. In Elcheikh, her Honour also considered what reasons were required in circumstances where the conclusion was reached that the deduction was greater than 10%. Her Honour said at [139]-[141]: "[139] In this case the medical specialist was clearly of the view, as I have said, that the major cause of the impairment was the underlying Scheuermann's disease. It must be accepted that in coming to a conclusion that the deduction should be 50%, it was not necessary for the medical specialist to refer expressly to the 10% deduction specified bys 323(2) and Guideline 1.52. Implicit in his conclusions was the view that the evidence was at odds with a 10% deduction. [140] Given the parties' competing cases, what was required, however, was an explanation of what evidence was accepted or preferred in reaching the conclusion that the deduction should be 50%. The simple statement that the medical specialist did not accept the reasoning of one expert and that he agreed with that of another, did not comply with the obligation to give reasons for the conclusions reached. Some further explanation had to be given. Nor was it sufficient to state that it was to give Mr Elcheikh the benefit of the doubt as to the contribution of his work to his impairment, to explain why a deduction of 50% was arrived at. [141] On its face this involved a departure from the statutory scheme, which itself gives workers 'the benefit of the doubt' in the case of difficulty in establishing contribution of a pre-existing condition to impairment resulting from a work injury. The statutory assumption provided bys 323(2) is that the contribution was 10%. That assumption can be displaced by evidence which the medical specialist considers is at odds with the assumption. In the event of a dispute over such evidence, the medical specialist must identify the evidence which is accepted or preferred and explain why a particular deduction has resulted."
5. The parties also referred to Ryder v Sundance Bakehouse [2015] NSWSC 526 ("Ryder"). In Ryder, Campbell J provided further explanation of the s 323 deduction (at [45]): "[45] What section 323 requires is an enquiry into whether there are other causes, previous injury, or pre-existing abnormality of an impairment caused by a work Injury. A proportion of the Impairment will be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-­existing abnormality made a difference to the outcome In terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it otherwise would have been as a result of the injury, it is impossible to say that a proportion of It is due to the pre-existing abnormality. To put It another way, the panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great."
6. Her Honour continued at [52]-[54]: [52] In my view, Dr Blount is correct in saying that judicial review is not concerned with the quality of the evidence. To paraphrase Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (at 156) to say that a finding ignores the probative force of the evidence which is all one way is asking this court to set aside the decision because it is wrong in fact. Generally speaking administrative tribunals have the right to be wrong in fact, unless the fact is jurisdictional, or the finding manifestly unreasonable. [53] Whether or not there is evidence to support the factual findings of the Panel must be looked at in the context of the relevant section; that is s 323 WIM Act. The decision of the Panel will be invalid if there is no evidence, or material, to satisfy an essential statutory element of the decision. In saying this, if there is some evidence, regardless of its quality, to support the statutory conditions the factual findings of the Panel and its decision will not be invalid on this score; The Queen v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120. [54] Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.

Grounds of Judicial Review

1. The grounds of review set out in the amended summons are as follows: 1. The third defendant [the Medical Assessor] made a jurisdictional error because the decision was so unreasonable that no reasonable decision maker would have made it, so that the decision was legally unreasonable. 1. The third defendant made a 1/10th deduction for pre-existing condition in the face of a wealth of material establishing that the 1/10th deduction was at odds with the evidence and establishing that it would not have been too difficult or too costly to determine the true deduction. 1. The third defendant made a jurisdictional error because the decision contained legal error going to jurisdiction. 1. The third defendant made a 1/10th deduction for pre-existing condition but the deduction was at odds with the evidence. 2. The third defendant made a 1/10th deduction for pre-existing but it would not have been too difficult or too costly to determine the true deduction. 1. The second defendant [the Delegate] made a jurisdictional error because she asked herself the wrong question. 1. The second defendant understood the plaintiff's appeal to the Appeal Panel to be a complaint that the third defendant's deduction for pre-existing condition should have been greater, whereas the plaintiff appealed on the basis that the third defendant's deduction of 1/10th was not open to him because it was at odds with the evidence and it would not have been too difficult or too costly to determine the true deduction. 1. The second defendant made a jurisdictional error in failing to understand her jurisdiction. 1. The second defendant failed to understand that a demonstrable error could be made out by an error of fact. 2. The second defendant failed to understand that an appeal to an Appeal Panel is not limited to grounds of review that may be pleaded in the Supreme Court's on judicial review. 1. In the alternative, the plaintiff relies on the grounds above as errors of law under s 69 of the Supreme Court Act 1970 (NSW).
2. Thus employer has appealed two decisions, first that of the Medical Assessor and second that of the Delegate. I shall deal with them in turn.

The decision of the Medical Assessor dated 30 June 2021 (CB 49-62)

1. I shall briefly refer to the relevant portions of the Medical Assessor's decision. The Medical Assessor's interview took place via zoom and lasted 2 and a half hours.
2. The Medical Assessor recorded a brief history of the worker, including onset of symptoms and related events such as treatment. At times he asked the worker questions to clarify and further explain her evidence. For example, the Medical Assessor opined: "I raised with Ms Nichols information from the documentation which indicated she had experienced a significant degree of paranoid thinking and the idea that she felt she was psychic and could predict the future. She stated this was not the case. She did not believe she was suspicious but preferred to refer to this as hypervigilant. She attributed the idea of being psychic to the fact that she had seen a school friend crossing the road at a dangerous corner and had suggested she should no longer do that or she could be hit by a car, which in fact she eventually was. I noted previous treating psychologist Ms Nada Coorey refused to continue treating her in 2015 unless she had a psychiatric consultation because of rather paranoid ideas. She denied this and said she had never been psychotic. I asked about a report in which she indicated she believed she had been sexually abused but could not remember it… She said she wondered if she had been drugged. She said she prefers to describe herself as spiritual. She said sometimes she has daydreams and they eventually come true. These appeared to be reasonable explanations of the events I raised. She denied previous psychiatric treatment but said she did receive psychological counselling in her early years from her GP Dr Makrim Guirgis who had obtained psychiatric qualifications."
3. Under the heading '5. Findings on physical examination' the Medical Assessor recorded: "She denied the presence of delusions or hallucinations. There was no unusual thought content or misperceptions evidence throughout the interview. She did not appear to be suspicious paranoid Ms Nichols was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology"
4. Under the heading 'Summaries of injuries and diagnosis', he stated: "In my opinion Mr Nichols suffers from an Adjustment Disorder with Anxiety (DSM-5) as a consequence of the harassment and bullying she had been subjected to in the workplace. I note there had been a history of previous anxiety conditions and that she was vulnerable to the development of an anxiety disorder. I attribute her pre-existing anxiety disorder largely to her very early childhood experiences prior to her adoption. This has given rise to an almost pan-anxiety disorder and extreme difficulty in emotional self-regulation under stress. From various reports she is fearful of separations and on a number of occasions has initiated pre-emptive separations herself. She is subject to panic attacks and has various phobias. I note the diagnosis of borderline personality disorder by psychiatrist Dr Suman of Parramatta. I found no evidence to support this diagnosis. I note the conclusion of Dr Hong that she suffered from Post-Traumatic Stress Disorder; she did not provide a history at interview which was supportive of this conclusion. I also found no evidence that she suffered from a psychotic disorder. I believe the most likely diagnosis of her pre-existing condition is Other Specified Anxiety Disorder, which in DSM-5 terms is a generalised anxiety disorder with limited symptom attacks and when generalised anxiety was not occurring more days than not. She also suffered from panic disorder. These conditions were activated during times of situational crisis and caused significant regression in her psychological functioning, thus accounting for her magical thinking and quasi-psychotic symptoms. It is important to state that when Ms Nichols was not stressed by situational crises her psychological functioning was unimpaired."
5. When making an evaluation of permanent impairment, the Medical Assessor stated: "E. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? It is clear Mr Nichols has struggled with anxiety from the age of 17 and was receiving psychological treatment up until 2015. At the time of her work injury she was symptom free."
6. The Medical Assessor positively determined that the worker had a pre-existing psychiatric (CB 56).
7. Under the heading 'Reasons for assessment', the Medical assessor recorded: "a. My opinion and assessment of whole person impairment I have assessed whole person impairment at 17% and made a deduction of 10% under s 323(2) for her pre-existing condition, taking the total to 15%."
8. The Medical Assessor, in making his assessment, carefully recorded the opinions of Drs Michael Hong, Abdal Khan, Carl Nielson, Juanita Ruiz, Owen Samuels and Mr Robert Craig, as well as various hospital notes. The Medical Assessor set out in Italics his opinions on the contents of these reports. I have not set these out in full as Counsel for the plaintiff referred to them at length in his submissions. Suffice to say, there were many psychiatric and psychological reports that covered the worker's psychiatric/psychological history before the current injury. Therefore, it cannot be said that there was an absence of medical evidence.
9. With respect to appropriate deductions for pre-existing condition, under the heading 'Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality' the Medical Assessor recorded: "a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities: (i) Other Specified Anxiety Disorder (DSM-5 300.09) and Panic Disorder (DSM-5 300.01) which were activated at times of situational crises. b. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth, (can only be used when not at odds with available evidence)"

Appeal Grounds 1 and 2 - The Medical Assessor's decision

1. These appeal grounds are of short compass and relate to whether the Medical Assessor made jurisdictional errors (including 'Wednesbury Unreasonableness') and errors of law in relation to s 323(2).

The employer's submissions

1. A court may give relief in respect of an administrative decision where the outcome of the decision lacks an evident and intelligible justification. The determination of the court on this plea is analogous to appellate determination of judicial discretion: MIAC v Li (2013) 249 CLR 332; [2013] HCA 18 at [76], [105]. Li was explained in MIBP v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [48]: "… any analysis which involves concepts such as 'intelligible justification' must involve scrutiny of the factual circumstances in which the power comes to be exercised."
2. In the alternative, a jurisdictional fact exists where the existence of a particular fact conditions the exercise of an administrative decision. The jurisdictional fact must have an objective existence so that it exists in fact, and it must be essential to the validity of the action under the relevant Act: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64; MIMIA v SGLB (2004) 207 ALR 12 at [37].
3. The failure of the conditions of "difficult or costly" and not "at odds with the available evidence" in s 323(2) of the Workplace Compensation Act may render a decision to apply a 10% deduction for pre-existing condition invalid either for lack of an evident and intelligible justification, or for error of law.
4. In the leading decision on s 323, Cole at [30], Schmidt J held that s 323 does not permit an assessment of previous or pre-existing injury or condition on the basis of assumption or hypothesis. Any assessment must have regard to the evidence. The only exception, under 323(2) provides an "assumption" that "is displaced if it is at odds with the available evidence".
5. It is reasonably clear that where a decision maker accepts that there is a previous or pre-existing injury or condition, the decision maker must assess that impairment having regard to the evidence. The only exception allows for an assumption of 10%, but only: 1. Where it will be difficult or costly to determine (because, for example, of the absence of medical evidence) and 2. The assumption is not at odds with the evidence.
6. The paradigm example given by the legislation of an assessment that will be difficult or costly to determine is where there is an absence of medical evidence. On the facts of this case, there was a wealth of evidence going to the worker's pre-existing condition. The court is permitted to inquire into both the existence and quality of the evidence to determine whether the Medical Assessor was legally entitled to make a 10% deduction under s 323 of the 1998 Act.
7. The Medical Assessor states that he had regard to the documents referred by the commission. The referral states that the documents consist of the Application to Resolve a Dispute and all its attached documents, and the Reply and all its attached documents ( 33).
8. The Medical Assessment Certificate contained the following facts relevant to a pre-existing mental health condition of the worker prior to the deemed date of 27 February 2018: 1. At or about nine days of age the worker was given up for adoption; (CB 50). 2. At about seven years of age the worker was sexually touched by a male neighbour; (CB 50). 3. At about 14 years of age the worker suffered a panic attack in a lift; (CB 50). 4. At about 17 years of age the worker became depressed and anxious; (CB 50). 5. As a teenager she had been suicidal; (CB, 53). 6. She experienced paranoid thinking; (CB, 53). 7. She was subsequently admitted to a psychiatric unit for 3 days; (CB 50, 53). 8. She stated she was psychic and could predict the future; (CB, 50). 9. She was claustrophobic and acrophobic; (CB, 54). 10. There had been episodes of deliberate superficial cutting (CB, 59).
9. Under the heading "Reasons for Assessment" the Medical Assessor lists a series of reports and his reasons for disagreeing with them: (CB, 56-59). Most of the reports commented on by the Medical Assessor's postdate the deemed date of injury - 27 February 2018. Those that do not are: 1. Dr Ruiz of 2 March 2009 stating that the worker claims to be psychic. Dr Mason states that while Dr Ruiz' comments are helpful in understanding the nature of the workers anxiety, he did not believe she was "genuinely" psychotic or paranoid (CB, 57). 2. Oatlands family practice clinical notes: 1. On 7 December 2010 the worker had a marital breakdown and required mental health monitoring (CB, 58). 2. On 6 October 2015 the worker was having bizarre dreams and "appears to be psychic" and was convinced she was being stalked and under surveillance. (CB 58, 59). 3. On 10 March 2016 the worker was having mood swings and having dreams that are coming true so she is psychic (CB 58). The Medical Assessor repeats his belief that the worker is not genuinely psychotic. 1. Ms Coorey of 4 February 2013 stated that the worker appeared to be delusional and that she (Ms Coorey) had recommended referral to a psychiatrist. Dr Mason comments that this is evidence that the worker tends to regress to a psychotic state when extremely anxious (Franco Aff 21 March 2022, 43).
10. The Medical Assessor diagnosed the worker as suffering from an adjustment order with anxiety (DSM-V) as a consequence of the harassment and bullying she had been subjected to the workplace and stated that she had a history of previous anxiety conditions and that she was vulnerable to the development of an anxiety disorder (Franco Aff 21 March 2022, 40).
11. The Medical Assessor also diagnosed a pre-existing condition of "Other Specified Anxiety Disorder, which in DSM-V is a generalised anxiety disorder with limited to symptom attacks", and diagnosed the worker as suffering from pre-existing Panic Disorder (Franco Aff 21 March 2022, 40).
12. The worker was assessed as suffering 17% whole person impairment for psychiatric, psychological disorder and with a deduction of 10% for pre-existing condition, bringing the final figure to 15% whole person impairment (Franco Aff 21 March 2022, 45).
13. The employer's first argument, is that the extent of the deduction to be made was self-evidently not difficult or costly to determine. The Medical Assessor has devoted 4 pages of his reasons to analysing and discussing reports of other practitioners on the question of pre-existing condition (Franco Aff 21 March 2022, 41-44). It was clearly not difficult or costly for the Medical Assessor to do this.
14. Second, the extent of the deduction to be made was not difficult or costly by reason of an absence of evidence.
15. Third, by reason of the medical reports, the extent of the deduction was at odds with the available evidence of pre-existing mental health conditions: 1. Panic attacks. 2. Anxiety and depression. 3. Paranoia. 4. Passive suicidal ideation. 5. Episodes of superficial cutting. 6. Admission to a psychiatric ward. 7. Claustrophobia and acrophobia. 8. Belief in psychic abilities and an ability to predict the future. 9. Documentation of 'mood swings', 'delusions' and 'transient psychosis' by a General Practitioner and a Psychologist.
16. These pre-existing mental health conditions manifested in a person subject to significant non-work stressors also predating the deemed date of injury: 1. Adoption. 2. Child sexual assault. 3. Abuse at the hands of her first husband. 4. An unusual rape situation in her own house. 5. An issue to do with someone being stabbed. 6. Sale of a house so that children had to stay with the separated partner. 7. Death of mother. 8. A possible break-in to her house. 9. A requirement to move out of a leased home in two months' time. 10. Significant concerns about a daughter when, on one occasion, police were involved. 11. Care for a sister dying of liver disease due to alcoholism.
17. In awarding an assumed 10% deduction for pre-existing condition under s 323(b) of the 1998 Act on the basis that actual assessment was difficult and costly and that the deduction was not at odds with the medical evidence, the Medical Assessor made a decision that lacks evident and intelligible justification.
18. In the alternative, the Medical Assessor made an error of law in applying an assumed 10% deduction under s 323 of the 1998 Act in circumstances of the non-existence of one or both of the jurisdictional facts of "difficult or costly to determine" the true deduction, and the assumed deduction was not "at odds with the available evidence".

The first defendant's submissions

1. It is not conceded the MAC is an 'administrative decision' properly before this Court. An appeal of the Medical Assessment Certificate ("MAC) made by a medical assessor is governed by s 327 of the 1998 Act.
2. The employer's complaint regarding the MAC is directed at the Medical Assessor's analysis, treatment of and/or weight given to certain aspects of the worker's history. If such a complaint were available under s 327 of the 1998 Act, either as a demonstrable error or the application of incorrect criteria, then this is a remedy the employer must seek, and has sought, elsewhere.
3. The Court is being asked to consider the merits of the MAC, and to usurp the statutory function of a Medical Appeal Panel, rather than to undertake judicial review. The Workplace Injury Act identifies a Medical Appeal Panel as the appropriate forum in which to undertake a merits appeal, provided that the third defendant has the necessary state of satisfaction to allow the appeal to proceed.
4. As a consequence, this Court should not act, as it is being asked, to perform the function of a Medical Appeal Panel as an alternative to an appeal pursuant to s 327. In the exercise of the Court's discretion, the Court should decline to entertain this part of the application. If there be material jurisdictional error on the part of the Medical Assessor, then relief may issue in respect of that decision requiring that the application to appeal be determined according to law; if there is not, then the avenue of appeal that is provided by the parliament has been exhausted, and the Court would not issue relief in a secondary level of appeal.
5. It is not conceded that there is an error based on legal unreasonableness on the MA's approach or point of construction and relies on the approach taken by Campbell J in Ryder at [52]-[54].
6. In the employer's submissions at [31]-[38], the plaintiff details (over two pages) the discussion and consideration the Medical Assessor gave to the prior history, which is in essence the same material the plaintiff relied on in its appeal against the decision of the Medical Assessor at [48]-[57].
7. There can be no argument the Medical Assessor has ignored or not considered relevant evidence; rather, it is argued that he did not accord it the weight the plaintiff considered appropriate. Those purported failings were addressed in the first defendant's submissions at [58]-[60]. The error that is asserted is not and could not be jurisdictional in character.
8. As a precursor to the two page recitation of the evidence to which the Medical Assessor had regard, the plaintiff boldly declares (at PS 30): On the facts of this case, there was a wealth of evidence going to the worker's pre-existing condition. Further, the deduction of a mere 10% was at odds with the wealth of evidence available to Dr Mason.
9. Putting to one side the rhetorical language, the submission strikes at the heart of the futility of this application; the plaintiff clearly disagrees with the opinion of the Medical Assessor; but that is no basis for an appeal under s 327.
10. The plaintiff goes on to assert at PS [30] that this Court is permitted to enquire into both the existence and quality of the evidence to determine whether the MA was legally entitled to make a 10% deduction under s 323 of the 1998 Act. There appears to be no substance in the argument on either existence or quality, given that the MA recorded and discussed it, and the plaintiff relies on the same material.
11. The plaintiff advances three arguments to support the contention the MAC is affected by jurisdictional error.
12. The first argument (the employer's submission [39]) asserts it was self-evidentially not too difficult or costly to determine an appropriate deduction under s 323. The real question is, whether the determination by the Medical Assessor was open to the Medical Assessor as the repository of the statutory task of determining this very issue. The challenge is couched as one of legal unreasonableness, but, as argued, is no more than a disagreement with the outcome.
13. The second argument (the employer's submissions [40]) sets out a further recitation of the evidence said to advance the plaintiff's arguments on the merits of the MAC. The same arguments formed the basis of the appeal to the President for referral to the Medical Appeal Panel; the same response applies.
14. The third argument (the employer's submissions [41]-[44]) appears to be founded in quasi-medical arguments and asserts that the MA had made a decision that 'lacks evident and intelligible justification' (PS [43]), despite the four pages of reasons and analysis of the historical medical material by the MA, and the differential diagnosis arrived at in conclusion at [10]-[11] of the MAC. Again, this is no more than a disagreement with the MA's assessment, and not a ground of appeal under s 327(3), as the delegate recognised.

Resolution

1. The starting point here is Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64. In relation to the duty of a medical panel to give reasons for its decision, the High Court stated at [55]: "[55] The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
2. Also, I bear in mind that the reasons of the Medical Assessor are to be read fairly, as a whole and "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. As I agreed earlier in this Judgment, there was no lack of medical evidence concerning the workers psychiatric/psychological condition both before and after the deemed injury.
3. The Medical Assessor devoted a large portion of his reasoning process and the exercise of his knowledge, experience and medical judgment to analysing the medical reports and indicated why he agreed or disagreed with parts of those reports. It is plain from the reasons that the Medical Assessor relied on s 323(2) is because it was too difficult for him to assess the impairment when having regard to the complex evidence on the worker's psychiatric/psychological history. In setting out his findings in relation to the medical evidence, the Medical Assessor decided that the worker's pre-existing condition was most likely other specified anxiety disorder (DSM-5) being a generalized anxiety disorder activated in situational crisis.
4. The Medical Assessor noted that there had been a history of previous anxiety conditions and that she was vulnerable to the development of an anxiety disorder. He attributed the worker's pre-existing anxiety disorder largely to her very early childhood experiences prior to her adoption. He stated that this has given rise to an almost pan-anxiety disorder and extreme difficulty in emotional self-regulation under stress. The Medical Assessor noted that from various reports she was fearful of separations and on a number of occasions has initiated pre-emptive separations herself. The Medical Assessor determined that she was subject to panic attacks and has various phobias.
5. Then the Medical Assessor summarised his findings in relation to prior injuries and the current injuries at [11] of his reasons: Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality a. In my opinion, the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities: (i) other specified anxiety disorder (DSM-V 300.09) and panic disorder (DSM-V 300.01) which were activated at times of situational crises b. The extent of the deduction is difficult or costly to determine so in applying provisions of s.323(2) I assess the deductible portion is one tenth (can only be used when not at odds with available evidence)
6. The Medical Assessor found that the most likely diagnosis of her pre-existing condition is Other Specified Anxiety Disorder, which in DSM-5 terms is a generalised anxiety disorder with limited symptom attacks and when generalised anxiety was not occurring more days than not. She also suffered from panic disorder. These conditions were activated during times of situational crisis and caused significant regression in her psychological functioning, thus accounting for her magical thinking and quasi-psychotic symptoms. Importantly, the Medical Assessor made a finding that when Ms Nichols was not stressed by situational crises her psychological functioning was unimpaired.
7. The Medical Assessor has set out his diagnosis of the plaintiff's psychiatric condition by prior to and after the deemed injury, indicating that the worker has a complicated psychiatric history both before and after the deemed injury and made the relevant diagnosis. In these circumstances it was very difficult for the Medical Assessor to determine the extent of the deduction for the pre-existing condition.
8. The employer has set out specific incidents in the plaintiff's life in an attempt to establish that the Medical Assessor should not have made the assumption in relation to s 323(2) of the Workplace Injury Act, and contends that the assumption is at odds with the available evidence. In my view, the Medical Assessor states "I assess the deductionable proportion as one-tenth". By saying this, the Medical Assessor is emphasising that his application of s 323(2) is not at odds with the available evidence. In my view, when the medical evidence is viewed as a whole, it is not at odds with the Medical Assessor implementing s 323(2).
9. In my view, the Medical Assessor did not make any error, be it a jurisdictional error of the Wednesbury unreasonableness type, a jurisdictional error of fact, or legal error on the face of the record in relation s 323(2). Judicial Grounds (1) and (2) fail.

The decision of the Delegate of the President

1. On 26 July 2021, the employer lodged an Application to Appeal Against Decision of Medical Assessor. The employer appeals against the Medical Assessment Certificate on two grounds. Firstly, reliance on s 327(2) and secondly, in stating that the assessment was made on incorrect criteria.
2. On 16 August 2021, the respondent lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor.
3. On 13 October 2021, the Delegate of the President handed down her decision in relation to the Appeal (CB 63).
4. The Delegate, at [12] of her decision, recorded that the main issue on appeal was that "the Medical Assessor allegedly erred in failing to apply a greater than 1/10th deduction to the overall assessment of permanent impairment."
5. The Delegate summarised the employer's submissions at [20]-[21]. At [20] a more fulsome description of the issue is set out: (CB 65) "[20] The appellant then asserts that "[d]espite this, at page 12 of the MAC, the [Medical Assessor] assessed the [respondent] as suffering 15% WPI for the psychological injury, after making a deduction of one tenth under section 323 of the 1998 Act." The appellant contends that the contemporaneous medical reports from the respondent's treating doctors, as well as the history recorded by the Medical Assessor, "indicate the severity of the prior condition and support a deduction under section 323 greater than one tenth". The appellant adds that "because of the availability of contemporaneous medical evidence, which the [Medical Assessor] commented on and referred to in the MAC", "a greater deduction than one tenth under section 323 would not have been too difficult or costly to determine". [21] On the above basis, the appellant submits that the MAC contains a demonstrable error and/or the Medical Assessor applied incorrect criteria in failing to provide a greater deduction than one tenth."
6. Under the heading 'Consideration' the Delegate stated: "[33] As the respondent submits, for an appeal under s 327(3)(c) of the 1998 Act an appellant must identify the failure to apply correct criteria with reference to the legislation and the Guidelines, the latter of which adopts the Guides. The appellant has not undertaken this task. The appellant does not refer to any specific criterion in the Guidelines or Guides that the Medical Assessor is alleged to have incorrectly applied. Indeed, the appellant has not submitted or explained how the Medical Assessor failed to apply any specific part of the Guidelines or Guides. Further, the appellant has not demonstrated or explained how failing to apply a greater than 1/10th deduction under s 323 of the 1998 Act to the respondent's overall assessment of permanent impairment is an error in the application of incorrect criteria. On this basis, I am not satisfied that the appellant has demonstrated error within the meaning of "incorrect criteria" under s 327(3)(c) is capable of being made out. … [35] I accept the respondent's submissions that the appellant has failed to identify the demonstrable error. Rather the appellant purports to assert that the MAC contains a demonstrable error on the basis of certain aspects of the respondent's history and the evidence which the Medical Assessor referred to and recorded in that MAC. Indeed, the appellant submits that "a greater deduction than one tenth under section 323 would not have been too difficult or costly to determine, because of the availability of the contemporaneous medical evidence, which the MA commented on and referred to in the MAC." (emphasis added) … [37] The function of a Medical Assessor is to form and give his or her own opinion on the medical question referred, by applying his or her own medical experience and expertise against the available evidence. The Medical Assessor prepared a detailed report on the medical question referred which addressed the respondent's medical history, the documentary evidence and his clinical findings on the day of examination. Having regard to the available evidence, the Medical Assessor found that the respondent suffered from two pre-existing conditions, namely Other Specified Anxiety Disorder and Panic Disorder which were activated at times of situational crises. In exercising his clinical expertise and judgment, the Medical Assessor found that the extent of the deduction for the proportion of the respondent's impairment that was due to the pre-existing conditions was difficult or costly to determine under s 323 of the 1998 Act. Therefore, consistent with s 323(2) of the 1998 Act, the Medical Assessor assessed the deductible proportion as one tenth. [38] The extent of the contribution of the pre-existing conditions to the respondent's assessed impairment was a matter for the Medical Assessor, having regard to the available evidence. That the appellant considers that the evidence supports a greater deduction under s 323 of the 1998 Act than the conclusion reached by the Medical Assessor does not constitute a demonstrable error. It is well accepted that a difference of opinion is not a demonstrable error. [39] …. Further, the appellant has not demonstrated that a deduction of 1/10th was at odds and how it was at odds with the available evidence or that a deduction of greater than 1/10th was and how it was not difficult or costly to determine within the meaning of s 323(2) of the 1998 Act. The appellant has merely reproduced aspects of the evidence, without analysis, to assert that a deduction of greater than 1/10th should have been applied because of the "severity of the prior condition". To this end, the appellant has not demonstrated that the Medical Assessor failed to correctly apply the test under s 323 or that the statutory assumption of a deduction of 1/10th should be displaced. [40] For the reasons set out above, I am not satisfied that the appellant has made out an arguable case of error. A ground of appeal under s 327(3)(c) of the 1998 Act of "incorrect criteria", within the meaning of that phrase discussed in Pitsonis, and under s 327(3)(d) of "demonstrable error", within the meaning of that phrase discussed in Vannini, is not capable of being made out.
7. The result was that the Appeal was not to proceed to the Appeal Panel.

The employer's submissions

1. The employer submits the contemporaneous medical evidence enclosed in the Application to Resolve Dispute ("ARD") and Reply reveals the severity of the worker's past psychiatric condition.
2. Additionally, the employer submitted, the Medical Assessor said there was a history of previous anxiety conditions which made the worker vulnerable to the development of anxiety disorder. The Medical Assessor attributed her pre-­existing anxiety disorder largely to her early childhood experiences prior to her adoption. He said this gave rise to an almost pan-anxiety disorder and extreme difficulty in emotional self-regulation under stress. He commented she is fearful of separations and on a number of occasions has initiated pre­emptive separations herself. She is also subject to panic attacks and has had various phobias.
3. Despite this, at page 12 of the MAC, the MA assessed the worker as suffering 15% WPI for the psychological injury, after making a deduction of one tenth under s 323 of the Workplace Injury Act.
4. The employer submitted the contemporaneous medical evidence enclosed in the ARD and Reply reveals the severity of the worker's past psychiatric condition.
5. Additionally, the employer submitted, the Medical Assessor said there was a history of previous anxiety conditions which made the worker vulnerable to the development of anxiety disorder. He attributed her pre­existing anxiety disorder largely to her early childhood experiences prior to her adoption. He said this gave rise to an almost pan-anxiety disorder and extreme difficulty in emotional self-regulation under stress. He commented she is fearful of separations and on a number of occasions has initiated pre-­emptive separations herself. She is also subject to panic attacks and has had various phobias.
6. Despite this, at page 12 of the MAC, the MA assessed the worker as suffering 15% WPI for the psychological injury, after making a deduction of one tenth under section 323 of the 1998 Act.
7. The one-tenth deduction is authorised by section 323(2) which says: "If the extent of a deduction under this section (or part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence."
8. The respondent submits the contemporaneous medical reports from the worker's treating doctors, as well as the history recorded by the MA himself, indicate the severity of the prior condition and support a deduction under section 323 greater than one tenth.
9. The respondent further submits the application of a greater deduction than one tenth under section 323 would not have been too difficult or costly to determine, because of the availability of the contemporaneous medical evidence, which the MA commented on and referred to in the MAC.
10. The appellant therefore submits the MAC contains a demonstrable error and/or the AMS has applied the incorrect criteria in failing to provide a greater deduction than one tenth.
11. In Craig v South Australia [1995] HCA 58 (1995) 184 CLR 163 at 179, the court held: "If such an administrative tribunal falls into error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
12. First, the Delegate made a jurisdictional error at paragraph [12] of her decision by identifying the wrong issue before her. The Delegate's formulation of the appeal is that it was a complaint that the deduction should have been greater than 10%. However the issue was not whether the deduction should have been greater, but whether the deduction of 10% was permitted under s 323 because it was too difficult or costly to determine, and was not at odds with the evidence. QBE's submission was consistent with an argument that on the wealth of evidence before him about the workers preexisting condition, the Medical Assessor's determination of a 10% deduction was not legally available to him.
13. Second, and following from the first error immediately above, the Delegate made a jurisdictional error at paragraph [38] of her decision by identifying another wrong issue before her, or alternatively reached a mistaken conclusion. The Delegate states that "assessed impairment was a matter for the Medical Assessor, having regard to the available evidence". However, the whole point of the appeal was that the Medical Assessor despite having had regard to available evidence before him, made an assumption of 10% deduction for pre-existing condition under s 323(2).
14. Third, the Delegate made a jurisdictional error at paragraphs [35] and [36] of her decision by making an erroneous finding that a demonstrable error may not be made out by an error of fact. The authority of Vannini, referred to and relied on by the Delegate, itself considered an earlier decision of Marina Pitsonis v Registrar Workers Compensation Commission [2008] NSWCA 88, also extracted by the Delegate at [34]: [34] section 327(3)(d)] requires the would-be Appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the certificate. There may be an error of fact or law but it must be more than one that depends on evidence that is not within section 327(3)(a) or (b) being adduced in the appeal.
15. Insofar as the Delegate considered, (wrongly) that the appellant was raising a demonstrable error of fact, the error of fact was capable of being a demonstrable error because the abundance of evidence was material to the Medical Assessor's decision to make an assumption of 10% under s 323(2) of the 1998 Act, the error was apparent from the Medical Assessors own recitation of the evidence material to s 323(2) of the Workplace Injury Act and the error was sufficient to change the outcome of degree of whole person impairment.
16. Fourth, the Delegate made a jurisdictional error at paragraph [39] of her decision in that she made an error of law about her jurisdiction, and the jurisdiction of an Appeal Panel.
17. The process of oversight of the Medical Assessor by an Appeal Panel is one of appeal, not review. The deficiencies that the Delegate finds in the insurer's written submissions on appeal - failure to argue a failure to give reasons, or to have regard to any particular evidence or recording an incorrect history or summary of the evidence - wrongly confine the available grounds of appeal to an Appeal Panel to those grounds that are available on review of an administrative decision by a court.
18. Fifth, the Delegate made a further jurisdictional error at paragraph [39] of her decision in making further error of law going to her jurisdiction by taking an overly formal approach to the insurer's appeal on the question of the insurer "demonstrating" Medical Assessor's misapplication of s 323(2) of the 1998 Act. Section 43 of the Personal Injury Commission Act 2020 requires the Commission to act with as little formality and technicality as the proper consideration of a matter permits. The insurer's submissions squarely established the factual basis for its submissions at paragraph 3(i) and (j) that a deduction of 10% was at odds with the available evidence and that it would not have been too difficult or costly to determine.

The Worker's submissions

1. The argument advanced as to the decision of the delegate (PS [53]-[57]) is confusing, at best.
2. The employer's first argument at PS [53] maintains: The delegate's formulation of the appeal is that it was a complaint that the deduction should have been greater than 10%. However, the issue was not whether the deduction should have been greater, but whether the deduction of 10% was permitted under s 323 because it was too difficult or costly to determine and at odds with the evidence.
3. It is argued that: [The employer's] submission was consistent with an argument but on the wealth of evidence before him about the worker's pre-existing condition, the medical assessor determination of a 10% deduction was not legally available to him.
4. This is certainly a curious assertion when one looks to the submissions in support of the application to appeal the MAC (Franco Aff 21 March 2022, [48]-[57]) and, in particular, the submission numbered 3 which makes the basis for the appeal painfully obvious: Submissions in support of first ground of appeal - failure to apply a greater deduction than one tenth: (a) The appellant submits the AMS made a demonstrable error and/or applied incorrect criteria when applying a deduction of only one tenth to the overall assessment of permanent impairment … and then: (i) The respondent submits the contemporaneous medical reports from the worker's treating doctors as well as the history recorded by the MA himself, indicate the severity of the prior condition and support deduction under s.323 greater than one tenth.
5. It is impossible to reconcile the assertion made in this Court at PS [53] with the appeal submissions to the President for referral to a Medical Appeal Panel in circumstances where the appeal clearly asked the delegate to consider there was an error in the failure to make a greater deduction than one-tenth. Tested another way, if the plaintiff's complaint was not that the Medical Assessor was bound to deduct more than one-tenth, what was the utility of the appeal (and what is the materiality of the asserted jurisdictional errors in this proceeding).
6. The second submission made relative to the decision of the delegate (PS [54]) is said to follow from the above asserted error.
7. The error is said to derive from the statement made by the delegate that the 'assessed impairment was a matter for the medical assessor having regard to the available evidence'. The argument advanced by the plaintiff here is that the 'whole point of the appeal' was that the MA, despite having had regard to available evidence before him, made an 'assumption' of 10% deduction for pre-existing condition under s 323(2).
8. There is no basis for the submission that the deduction made by the MA was an 'assumption'. As observed above, the MA engaged in four pages of reasoning and analysis of the historical medical material before arriving at a differential diagnosis at [10]-[11] of the MAC.
9. Further, the second and third pages of the MAC (Franco Aff 21 March 2022, [34]-[47]) (actually, the whole reading of the certificate itself) reveal that the Medical Assessor had been at pains to elicit a history of the issues the first defendant had dealt with from a psychological perspective; engaged with the history given by the first defendant in the clinical context on the day of examination; and expressed an opinion in accordance with his statutory task. The Medical Assessor process was entirely orthodox, and consistent with the approach required by the Workplace Injury Act.
10. As observed in the worker's response to the appeal (MF [58]-[60], at [24]): The thoroughness of the approach taken by the AMS (sic) in analysing history and the task before him (having taken the detailed history referred to above) is seen: 1. Paragraph numbered 7 dealing with diagnosis and in particular the nature or pre-existing diagnosed (Other Specific Anxiety Disorder) which ultimately informs the AMS's application of s 323 and 2. At paragraph 10 on page 8 and in the three pages of reasoning that follows which deal with the earlier conditions and differential diagnosis.
11. The third submission (at PS [55]), is that there is jurisdictional error in the delegate's decision at [35] and [36], said to be constituted by the delegate holding that at demonstrable error may not be made out by error of fact. The delegate neither said nor held any such thing. Rather, the plaintiff appears to complain that the delegate did not accept its argument as to the weight that ought to have been accorded to certain elements of history, with the result that the delegate did not discern the demonstrable error. This is the very question of the delegate's state of satisfaction that is committed to the second defendant under s 327(4), and is beyond the reach of judicial review. Even if (contrary to the first defendant's submission) the delegate be wrong, he is wrong about a question (of fact) within jurisdiction so that there would be no jurisdictional error.
12. In truth, there is no error of fact, but rather the plaintiff's assertion that certain facts ought to have been seen its way, instead of the way they were evaluated by the MA. This deficiency in the plaintiff's argument is repeated in the second body of the plaintiff's submissions [55], where the plaintiff asserts: The error of fact was capable of being a demonstrable error because the abundance of evidence was material to the medical assessor's decision to make an assumption of 10% under s.323 of the 1998 Act, the error was apparent from the medical assessor's own recitation of the evidence material to s.323(2) of the 1998 Act and the error was sufficient to change the outcome of degree of whole person impairment.
13. On the one hand, the plaintiff is asserting that the Medical Assessor did not have due regard to the evidence, but on the other concedes that the Medical Assessor had recited same. The argument is internally inconsistent and untenable.
14. The fourth ground relied on was a jurisdictional error in the delegate failing to be convinced by the first defendant's arguments with respect to the availability of an appeal or to identify any incorrect history or summary of the evidence.
15. It is incumbent upon any appellant to identify the error that it is sought to have rectified, and the failure to do so on the part of the plaintiff at first instance was fatal to its appeal. That an error be identified as a precursor to an appeal is fundamental to the delegate's role as a gatekeeper. Indeed, the need for an arguable case be identified was discussed by the delegate at [34] of the reasons with reference to Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, which referenced Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 (see Mason P at [62]), and more particularly the observations of Campbell J in Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [10] of the delegate's reasons.
16. There was no error of the kind asserted; and certainly no error capable of being characterised as jurisdictional so as to attract the Court's jurisdiction under s 69 of the Supreme Court Act 1970.

Resolution

1. At the outset, the Delegate correctly recorded that the appellant challenged the Medical Assessment certificate on the grounds of the application of incorrect criteria under s 327(3)(c) of the Workplace Injury Act and demonstrable error under s 327(3)(d). The Delegate defined the main issue on appeal, not as precisely as she could have, as that the Medical Assessor allegedly failed to apply a greater than 1/10th deduction to the overall assessment of permanent impairment.
2. In so far as the employer contends that the Delegate identified the wrong issue, she correctly identified the main issue to which the submissions relate. At [20]-[21] the Delegate sets out the employer's issue on appeal more comprehensively. She then summarised both parties' submissions and records that the employer asserted that at page 12 of the Medical Assessment Certificate, the Medical Assessor assessed the worker as suffering 15% WPI for the psychological injury, after making a deduction of one tenth under s 323 of the Workplace Injury Act. The employer contended that the contemporaneous medical reports from the worker's treating doctors, as well as the history recorded by the Medical Assessor indicate the severity of the prior condition and support a deduction under s 323 greater than one tenth. The employer added that because of the availability of contemporaneous medical evidence, which the Medical Assessor commented on and referred to in the Medical Assessment Certificate, a greater deduction than on tenth under s 323 would not have been too difficult or costly to determine. One the above basis, the employer submitted that the Medical Assessment Certificate contains a demonstrable error and/or the Medical Assessor applied incorrect criteria in failing to provide a greater deduction than one tenth. The Delegate summarised the worker's overall submission at [29] as that the employer, other than suggesting in broad terms that the deduction under s 323 should have been greater, identifies no demonstrable error or application of incorrect criteria by the Medical Assessor and that the appeal is little more than an expression of disgruntlement with the Medical Assessor's opinion.
3. The difficulty with the employer's submissions in relation to incorrect criteria as noted by the Delegate is that it did not demonstrate or explain how failing to apply a greater than 1/10th deduction under s 323 of the Workplace Injury Act to the Medical Assessor's overall assessment of permanent impairment is an error in the application of incorrect criteria. On this basis, the Delegate was not satisfied that the appellant has demonstrated error within the meaning of "incorrect criteria" under s 327(3)(c) is capable of being made out. Likewise in relation to demonstrable error with correctly reference to Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324. She also correctly referred to Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 as to the test of satisfaction that an arguable case of error appeared on the face of the record. More critically, the Delegate reasoned the extent of the contribution of the pre-existing conditions to the worker's assessed impairment was a matter for the Medical Assessor, having regard to the available evidence.
4. The fact that the employer considers that the evidence supports a greater deduction under s 323 does not constitute a demonstrable error. It is well accepted that a difference of opinion is not a demonstrable error. The Delegate further stated that the worker has not demonstrated that at deduction of 1/10th was at odds with the available evidence or that a deduction of greater than 1/10th was and how compliant it was not difficult or costly to determine within the meaning of s 323(2) of the Workplace Injury Act. The Delegate added that the worker has merely reproduced aspects of the evidence, without analysis, to assert that a deduction of greater than 1/10th should have been applied because of the severity of the prior condition and to this end the worker has not demonstrated that the Medical Assessor failed to correctly apply the test under s 323 or that the statutory assumption of a deduction of 1/10th should be displaced.
5. It is my view that the Delegate properly exercised her function in accordance with s 373(4) Workplace Injury Management Act. Two flaws with the employer's submissions were identified by the Delegate. They are that while the employer contended that there was incorrect criteria and or a demonstrable error it did not articulate or explain how this was at odds with the available evidence or how it was not difficult or costly to determine with in the meaning of s 323 of the Workplace Injury Management Act. She was correct,
6. The employer's submissions raise issues that are in the nature of a merits review. The Delegate did not ask herself the wrong question and she correctly understood and applied her statutory task as set out in s 327(3) and 327(4) of the Workplace Injury Act. Judicial Grounds 3 and 4 fail.

Result

1. The result is that the application for judicial review is dismissed. The summons dated 16 February 2022 is dismissed.

Costs

1. Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the first defendant's costs on an ordinary basis.

The Court orders 1. The amended summons filed 16 February 2022 is dismissed. 2. The plaintiff is to pay the first defendant's costs on an ordinary basis.

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: 18 July 2022