Luck v Workers Compensation Nominal Insurers & Ors

Background

1. The plaintiff was born in 1977 and as of 2017, she was employed by Australian Health Management Group Pty Ltd (AHMG) in an information technology role that included project management duties. She commenced working for that company in 2011. In about October 2016, the plaintiff returned from a period of maternity leave, working three days a week for 6.5 hours per day. In April 2017, the plaintiff's role changed, and she became a knowledge management analyst. She also commenced working under a new manager.
2. By November 2017, problems in the workplace arose and the plaintiff was placed on a performance review. The plaintiff says that she suffered workplace stress and was the target of conduct amounting to harassment and bullying by co-workers and management. In March 2019, she was placed on another performance review. In April 2019, following an incident that the plaintiff alleges concerned minor spelling mistakes, she ceased work and her employment was terminated shortly thereafter by AHMG.
3. Ms Luck was treated by her general practitioner (GP) Dr Singh and she was referred to a psychologist Ms Pham in mid 2019.
4. In 2021, Ms Luck commenced treatment with a psychiatrist who prescribed her medication. Over time, management of the plaintiff's medical condition became difficult. She changed medical practitioners and perceived a reluctance by medical practitioners to assist her.
5. On 13 July 2022, the plaintiff was assessed by the AMS via audio-visual link. No complaint is made in these proceedings about the method by which the assessment was conducted. At the time of the assessment, the plaintiff was still married to her husband. The AMS described the relationship between the plaintiff and her husband as close, but he observed that there was some ongoing tension and anxiety which made the plaintiff worried about the security of the marriage. Soon after the clinical examination with the AMS, the plaintiff discovered that her husband was involved in an extra-marital affair and they separated immediately thereafter. It appears that the affair had been ongoing for some time, but the plaintiff says that she was not aware of it at the time of the examination with the AMS. On 19 July 2022, the AMS issued a Medical Assessment Certificate (MAC) certifying that the plaintiff's WPI was 7%, after an application of a one-tenth deduction in respect of a pre-existing condition.
6. Ms Luck filed an Appeal Against Decision of Medical Assessor on 15 August 2022 pursuant to ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) in the PIC Workers' Compensation Division. The plaintiff contended that the AMS had made factual errors and that her Psychiatric Impairment Rating Scale (PIRS) class categorisation in two particular categories, i.e. concentration, persistence and pace (CPP) and social functioning, should be increased from class 2 to class 3 respectively. The plaintiff also sought to rely on an additional statement that set out, what was in her submission, relevant additional material not available at the time of the assessment with Professor Glozier, being the discovery of her husband's affair and her marriage break-down. The plaintiff sought a re-examination by the Appeal Panel and a reconsideration of her WPI.
7. On 4 October 2022, a delegate of the President of PIC referred the plaintiff's appeal to an Appeal Panel for determination in accordance with s 327(4) of the WIM Act, having been satisfied, on the face of the application and the submissions made, that at least one ground of appeal was capable of being made out, and that there was an arguable case of error in relation to the AMS's assessment of the plaintiff. The President's delegate found that there was an arguable case of error under s 327(3)(d) of the WIM Act.
8. The parties agreed that once the delegate of the President of PIC made this decision, the Appeal Panel was not constrained to the ground that the delegate was satisfied was made out, but was constrained only by the grounds relied on by the plaintiff, citing Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 (Lancaster) per Basten AJ at [16].
9. In Sleiman v Gadalla Pty Ltd [2021] NSWCA 236, Leeming JA, Gleeson and Payne JJA agreeing, said at [62]: "Fifthly, s 327(4) confers what was described in oral address as a "gatekeeper" function on the Registrar, who must reach a state of satisfaction that on the face of the application and any submissions at least one of those four grounds has been "made out". This provision has led to a deal of litigation, for example Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101; 6 DDCR 61 . For present purposes, it matters only that subsection (4) is a further qualification upon the right of appeal, and is confirmatory of the limited nature of the four grounds specified in s 327(3)."

Statutory Framework

1. Section 69 of the Supreme Court Act 1970 provides: 69 Proceedings in lieu of writs (1) Where formerly - (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act - (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) Subject to the rules, this section does not apply to - (a) the writ of habeas corpus ad subjiciendum, (b) any writ of execution for the enforcement of a judgment or order of the Court, or (c) any writ in aid of any such writ of execution. (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings - (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.
2. Section 327 of the WIM Act provides: 327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds - (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out. (5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal. (6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section). Note - Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section). (7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act. (8) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause. Note - Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
3. Section 328 of the WIM Act provides: 328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. (2A) To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.
4. It is agreed by the parties, notwithstanding the mention of s 328 in the material, that these proceedings concern only s 327 of the WIM Act.

Decision of the Appeal Panel

1. The Appeal Panel handed down its decision declining to re-examine the plaintiff, declining to admit the plaintiff's further statement dated 12 August 2022 and otherwise dismissing her appeal on 16 November 2022.

Further medical examination

1. On a preliminary review of the AMS's assessment, the Appeal Panel determined that it was not necessary for Ms Luck to undergo further medical examination because, although she had requested one, there were no specific reasons provided by her as to why it was necessary. Further, the Appeal Panel considered that a re-examination was not necessary in any event, as it was of the view that it had sufficient evidence to determine the appeal.

Application to admit fresh evidence

1. The Appeal Panel declined to accept the plaintiff's additional statement as fresh evidence, pointing to the fact that some of Ms Luck's additional statement (at paras [1] to [16]) criticised the conduct of the AMS in carrying out the medical assessment. The Appeal Panel found that this criticism was contrary to the principles established by Hoeben J (as his Honour then was) in Petrovic v BC Serve No 14 Pty Ltd t/as Broadlex Cleaning Services Pty Ltd [2007] NSWSC 1156 (Petrovic).
2. In refusing this part of the plaintiff's application (and observing that it was objected to by Ms Luck's former employer as the respondent to PIC appeal), the Appeal Panel determined that the additional statement should not be received as evidence because it did not meet the requirement of s 327(3)(b) of the WIM Act, i.e. that the additional information was not available to, and could not have been reasonably obtained by the appellant before the medical assessment the subject of the appeal. Further, in the Appeal Panel's view, Ms Luck had failed to provide satisfactory evidence of the deterioration of her condition, as there was no evidence that the marriage broke down because of her work injury and because there was no medical evidence in support of this claim. The Appeal Panel noted that Ms Luck said in her additional statement that she had discovered her husband's affair on 3 August 2022 and that the relationship ended on 7 August 2022, which was a few weeks after her assessment with the AMS on 13 July 2022. The Appeal Panel said at [16] that: "Affairs leading to marriage breakups are commonplace and do not mean that the appellant's condition has deteriorated or that she is more impaired in any sustained way…the appellant was understandably upset by these events."
3. As to text messages that Ms Luck annexed to her additional statement in an attempt to prove when her relationship ended, the Appeal Panel agreed with the respondent to the appeal that the messages did not verify the dates that the appellant alleged her relationship to have ended or when she discovered the affair, such that s 327(b)(3) of the WIM Act was not satisfied.
4. The Appeal Panel set out the findings of the AMS at length at paras [26] to [36] of its decision.

Class categorisations

1. Dealing with the plaintiff's ground of appeal that the PIRS categorisation of social and recreational activities should be upgraded from class 2 to class 3, the Appeal Panel noted that this submission was based on the evidence contained in the plaintiff's additional statement which had been rejected. The Appeal Panel's view was that in any event, the AMS's categorisation of social and recreational activities as class 2 was entirely consistent with the history that he took of the plaintiff. Assessing this history against the exemplar descriptor of class 3, the Appeal Panel said that nothing in the history obtained by the AMS suggested that Ms Luck rated as class 3. Specifically, the Appeal Panel noted that Ms Luck had a relatively active social life and that there was no evidence that she required a support person to assist her in any of her activities. The Appeal Panel further noted that the AMS set out his reasons for disagreeing with other medical experts who had placed the plaintiff in class 3 for social and recreational activities. Ultimately, the Appeal Panel was satisfied that the AMS was detailed and thorough in his reasoning and it dismissed this ground of appeal.
2. As to the class categorisation of CPP, the Appeal Panel set out the descriptor for both class 2 and class 3 and noted that many of Ms Luck's submissions on this ground were contained in the additional statement which they had rejected. At [53] the Appeal Panel said: "We point out however that the appellant was clearly capable of "typing a long document", that statement, and did not demonstrate any cognitive difficulties in so doing."
3. With respect to this ground of appeal, Ms Luck relied on two reports of experts (Dr Cameron and Dr Chow), whose opinions differed from that of the AMS. The Appeal Panel noted that the AMS's assessment occurred two years after the reports relied upon by Ms Luck. In the Appeal Panel's opinion, the AMS had conducted a thorough examination of the plaintiff. He concluded that the plaintiff's abilities were mildly impaired and consistent with the general descriptor of a class 2 rating. At [62], the Appeal Panel observed that the class descriptors are "just that: a broad outline of the sorts of activities or cognitive impairments in a particular category." In the Appeal Panel's view, the assessment of the AMS categorising CPP as class 2 was entirely open to him.
4. The Appeal Panel determined that the MAC issued on 19 July 2022 should be confirmed.

Grounds of appeal

1. On appeal to this court, the plaintiff relies on the following grounds of appeal as set out in the Amended Summons in accordance with r 59.4 of the UCPR: 1. The third defendant misunderstood, and misapplied, ss 327 and 328 of the WIM Act and the impact of the decision of Petrovic v BC Serve No 14 Pty Ltd [2007] NSWSC 1156 (Petrovic) and Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 when considering whether it should receive materials constituted by a statement of the plaintiff. As a result of the third defendant's misunderstanding, and misapplying, of the principles to be applied, the third defendant rejected that statement, including on a mistaken discretionary basis, and did not consider the statement. The statement dealt with the topic of the demise of the Plaintiff's marriage, which included the Plaintiff's discovery of her husband's relationship with another person a short time after the assessment by AMS Glozier. The third defendant also erred in making findings based on expert opinion concerning the causal relationship between the plaintiff's injury and the demise of the marriage, including that marriage breakups are commonplace, without providing the parties the opportunity to submit expert opinion evidence on such topic, and without consulting with the plaintiff on such topic (Ground 1); 2. The third defendant erred in determining the plaintiff's challenge to the class ratings assessed by the AMS Glozier by: 1. Failing to accept, and act on, the statement by the plaintiff; 2. Failing to deal with the plaintiff's substantial and articulated case based on probative documentary records that were before AMS Glozier, but which had been misunderstood, or not considered by AMS Glozier as to their probative content; and 3. Failing to consult with the plaintiff for the purposes of (i) and (ii). (Ground 2); and 1. The third defendant erred in acting on fresh evidence when it had determined that it would not receive any fresh evidence. The third defendant erroneously relied on the fact of the statement submitted by the plaintiff to conclude that the plaintiff was correctly assessed as to class rating by AMS Glozier because the plaintiff was "clearly capable of 'typing a long document'" and "did not demonstrate any cognitive difficulties in so doing." The third defendant erroneously attributed a statement that was prepared by legal representatives on instructions as having been prepared by the plaintiff. (Ground 3)
2. The plaintiff said that the errors set out in Grounds 1 - 3 are significant and ought to be subject to the supervisory jurisdiction of the Court because they vitiate the decision of the second and third defendants.

Evidence

1. The evidence before me is an affidavit of Michelle Walsh sworn on 30 May 2023 which was read in the proceedings. The eight annexures include the plaintiff's application filed in PIC on 22 April 2022 with supporting documents, the MAC of AMS Glozier, the plaintiff's additional statement which was rejected by the Appeal Panel, and the Appeal Panel's decision.

The MAC

1. Professor Glozier, as the AMS, examined the plaintiff on 13 July 2022 via audio-visual link. He also had regard to the statements prepared by Ms Luck on 1 May 2019 and 13 April 2022, the various notes and reports of treating clinicians and medico-legal reports to inform his assessment and corroborate what Ms Luck had reported to him.
2. The AMS took a detailed history relating to the injury. Ms Luck reported that her problems at work started in November 2017 when she was placed on a Performance Improvement Plan which she believed was unfair. This caused her distress, and so Ms Luck consulted her GP Dr Singh who reviewed her existing Mental Health Care Plan (MHCP) which had been entered into as a result of previous and separate stressors arising in her family life. At that time, Dr Singh believed that Ms Luck had anxiety and depression and she was referred for cognitive behavioural therapy (CBT).
3. Ms Luck reported subsequent problems at work over the next 18 months, allegedly to do with her performance and management. On 5 March 2019 (the date the workplace injury is deemed to have been occurred), she again consulted her GP. Thereafter, her GP notes indicate that Ms Luck told him that her situation at work had worsened and that she had organised CBT through her employer. By 1 April 2019, Ms Luck had left her employer and her employment was then terminated.
4. In mid-2019, Ms Luck commenced treatment with a psychologist, Ms Loan Pham. The plaintiff told the AMS that she had stopped seeing Ms Pham because the treatment was not working and she was not improving.
5. Throughout 2021, the plaintiff was taking Sertaline and Fluoxetine, apparently without benefit. In 2021, she was referred to Dr Stuart Allison, psychiatrist, who noted the presence of a mixed episode of depression and anxiety combined with other symptoms such as feeling flat, poor concentration, fatigue, amotivation and intrusive recollections and ruminations about work. Ms Luck told the AMS that as of the date of his assessment, Dr Allison had stopped seeing her. Professor Glozier noted that whilst Ms Luck told him that Dr Allison had ceased her antidepressant medication, Dr Allison's report suggested that it was Ms Luck who had stopped taking it. She had apparently recommenced taking the medication three weeks before the assessment with Professor Glozier.
6. At the date of the assessment, Ms Luck was taking Escitalopram 10mg daily and was waiting to see a new counsellor. She reported symptoms which included feeling flat and a desire to have control over her life and surroundings in order to function. She avoided places where she might run into people who worked for her former employer. She felt that her identity had been taken away from her, as she was heavily invested in her work role. She ruminated about her treatment at work and continued to be irritable, overly sensitive, easily annoyed and frustrated.
7. Ms Luck reported previous counselling on two occasions but did not mention the family related difficulties which instigated the MHCP in early 2017.
8. As to social activities and activities of daily living, the plaintiff reported a very good relationship with her in-laws before her workplace problems began. Whilst the AMS noted that this report contradicted the notes of Ms Luck's GP, he considered that the relationship may have improved over time.
9. As of the date of the assessment, Ms Luck reported that her days were dominated by household and childcare activities. She was able to run errands, drive her children to school and to after-school activities and participate in family holidays. However, Ms Luck reported being anxious when she attended a recent school parents' meeting and also had less focus when reading. Ms Luck had attempted an online course in event management but was unable to complete it despite being offered a further year to do so. She said that she had a close relationship with her family and her husband, although she reported ongoing tension and anxiety in the marriage because her husband said that she was a changed person. This made Ms Luck worry about the security of her relationship. She used her phone for internet banking, social media, and emails. She was responsible for the family budget, much of which she had automated with direct debits.
10. Professor Glozier found the plaintiff to be well-kempt with no problems in self-care. He believed her to be a focused and clear historian who showed no concentration difficulties or problems with the pace of the assessment. Ms Luck appeared to have pre-existing anxiety and depression in the months prior to the difficulties beginning at her work, which culminated, in Professor Glozier's opinion, in a major depressive disorder.
11. Professor Glozier also had regard to a medico-legal report by Dr Martin Allan, consultant psychiatrist, dated 14 December 2020. Dr Allan came to the same diagnosis, but Professor Glozier disagreed with Dr Allan as to the impact of the diagnosis on Ms Luck's social and recreational activities. In his opinion, the plaintiff's reduced interaction with a close circle of friends was indicative of a mild impairment.
12. Professor Glozier certified the plaintiff's WPI as 7%, inclusive of a 1/10th deduction for what was, in his view, a pre-existing adjustment disorder.

The additional statement

1. The plaintiff's additional statement dated 12 August 2022 (found as part of annexure "D" to Ms Walsh's affidavit), is a three-page document with 24 numbered paragraphs. In that document at paras [4] to [16], Ms Luck seeks to correct what she says are 'factual errors' within the report of the AMS and she criticises the conduct of the assessment by Professor Glozier. Ms Luck says that she feels that she was not given an opportunity to expand on or provide full answers to some the AMS's questions.
2. For example, the plaintiff denies a statement which was attributed to her by Professor Glozier with respect to how often she visits a holiday home with her husband and friends. She denies that she does not have issues with self-care. She states that the AMS did not ask her much about household chores, and that in fact she does not cook as much as she used to and that her mother and husband help with chores. Ms Luck also says that the AMS "significantly understated" what she told him about the state of her marriage and that he did not ask many questions about her marriage or familial relationships. Ms Luck says that the AMS did not ask her much about her concentration, and she contradicts his assessment that she was a "focused and clear historian," saying instead that she found it difficult to answer his questions.
3. As to the "new information" in paras [17] to [24], the plaintiff's additional statement sets out how she says that she learned of her husband's affair which culminated in separation, all of which took place after the AMS's assessment on 13 July 2022.
4. Ms Luck says that on 3 August 2022, she had text messages with her husband in which her husband told Ms Luck that he had chosen the other woman. She annexes text messages which she says were exchanged on 7 August 2022, and which she says demonstrate that they have separated.
5. Ms Luck says that since her discovery of the affair, she has been in shock and an "emotional wreck." Her mother and friends have been assisting her with household chores, meal preparation and childcare.

Ground 1 - rejection of plaintiff's fresh evidence

1. Mr Romaniuk submitted that the plaintiff's additional statement satisfied the criteria for the admitting of fresh evidence under ss 327(3) and 328(3) of the WIM Act because on its face, the evidence was not available to, or known by the plaintiff prior to, or at the time of her clinical examination by the AMS. He said that the demise of the relationship would prima facie amount to a higher class rating in the social and functioning category. Mr Romaniuk said that the Appeal Panel uncritically accepted the submissions of the first defendant that the text messages relied upon by the plaintiff to prove when she knew of the affair and when the relationship ended did not prove those facts. He submitted that the first defendant's submission was unsustainable, given that Ms Luck had prepared a sworn statement on this matter and it was unchallenged. Mr Romaniuk's submission was that the first defendant had raised believability issues with respect to the demise of the marriage, which the Appeal Panel accepted in error.
2. Further, Mr Romaniuk submitted that the Appeal Panel's view that the plaintiff should have adduced medico-legal evidence to demonstrate a causal connection between her workplace injury and the demise or deterioration of her marriage was an error, because on the question of reception into evidence under the legislation, this was unnecessary. He submitted that the Appeal Panel at para [16] expressed an impermissible opinion about the impact of an extramarital affair on the plaintiff's workplace injury when it had not required the parties to submit evidence on such a causal connection, which amounted to a denial of procedural fairness.
3. As to the Appeal Panel's rejection of the statement, in part because Ms Luck appears to criticise the processes of the AMS, Mr Romaniuk submitted that whilst the purpose of ss 327(3) is not to permit evidence which criticises how a clinical examination was performed, there is no preclusion on the reception of material which corrects an error of fact made by an AMS, as the plaintiff's additional statement sought to do. He submitted that the Appeal Panel misconstrued the relevant provisions of the WIM Act, with the consequence that the Appeal Panel led itself into error in assessing the plaintiff's WPI (to which see Ground 2 below).
4. Ms Roberts submitted that when considering grounds of review, it was not necessary for the Appeal Panel to invite the plaintiff to put on evidence going to the question of any connection between her marital breakdown and her injury and/or whether her condition had deteriorated. Neither did it have an obligation to accede to the plaintiff's request that she be examined again. Ms Roberts submitted that the Appeal Panel found that the plaintiff's additional statement did not indicate a connection between her injury and her marital breakdown, and that the claim of deterioration was unsupported by medical evidence. Accordingly, in the first defendant's submission, a conclusion by the Appeal Panel that the (deterioration) ground in s 327(3)(a) was not made out was available to it.
5. As to the requirement in s 327(3)(b) that there be additional relevant information, Ms Roberts submitted that the additional statement did not indicate when the plaintiff's husband's affair began, and Ms Roberts relied on the text messages annexed to the additional statement as being undated. She submitted that whether there was information relevant to the assessment on 13 July 2022 and if it was both unknown and unknowable was not addressed in the plaintiff's additional statement. Ms Roberts further submitted that it was of some significance that no connection between this event and the injury is explained. Reliance was also placed on the fact that Ms Luck told the AMS of her concerns for her marriage and that his assessment was prepared having regard to this information.
6. Ms Roberts relied on Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 at [40], where Giles JA said: "Reception of evidence on appeal involves regard to relevance and, without being exhaustive, apparent credibility and capacity to affect the result. The fact that evidence was not available and could not reasonably have been obtained before the medical assessment does not make its reception mandatory."
7. Ms Roberts submitted that the additional statement did not provide a basis for concluding that the grounds either in ss 327(3)(a) or (b) were established, and therefore should not be received in evidence, was open to the Appeal Panel.
8. Ms Roberts also submitted that, with respect to criticism by the plaintiff of the Appeal Panel refusing to re-examine her, because of perceived criticism by the plaintiff of the AMS's processes in her additional statement, the importance of considering the context of any new statement sought to be relied upon in an appeal requires emphasis, and that criticism of a medical assessor's process would generally not constitute new evidence. She relied on Petrovic at [31], where Hoeben J, as his Honour then was, said:- "[31] In my opinion the words 'availability of additional relevant information' qualify the words in parentheses in s 327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s 326 as to which a MAC is conclusively taken to be correct. In other words, 'additional relevant information' for the purposes of s 327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters can be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b)." [emphasis added]
9. Ms Roberts says that the Appeal Panel carefully considered the plaintiff's additional statement in its entirety and that its conclusion that it not be admitted into evidence was open and there was therefore no error of law.
10. Ms Roberts also relied on established principle that the reasons of a decision maker should not be examined with an eye keenly attuned to the perception of error: McGinn v Ashfield Council [2012] NSWCA 238; Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC at 255 per Preston CJ citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.
11. Ms Roberts submitted that it was not necessary for the Appeal Panel to examine Ms Luck again and that any further assessment would only follow a finding that an error was established: Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38.
12. As to the Appeal Panel's comment at para [16] of its decision - "Affairs leading to marriage breakups are commonplace and do not mean that the appellant's condition has deteriorated or that she is more impaired in any sustained way" - Ms Roberts described it as the first of two "purple passages" found in the reasons of the Appeal Panel. She also referred to this passage as "troublesome" and "unhelpful." However, Ms Roberts submitted that in the context of the Appeal Panel's reasons for rejecting the plaintiff's additional statement at paras [8] to [18], the "purple passage" was immaterial. In her submission, what the Appeal Panel has said in those paragraphs, which was open to them taking into account the extract from Petrovic above, is that it does not necessarily follow that a marriage break up is caused by a workplace injury. It might be, but that was a matter to be explained on evidence and in this case the evidence was not before the Appeal Panel who was not satisfied of that correlation.

Consideration

1. In my opinion, it was open to the Appeal Panel to reject the plaintiff's additional statement.
2. First, paragraphs [1] to [16], however described, were criticisms of the manner in which the AMS conducted his examination and fall squarely within the prohibition in Petrovic. In my view, there is no distinction to be made, as was suggested by Mr Romaniuk, in making corrections rather than complaints about the manner in which the examination was performed.
3. Second, paras [17] to [24], however described, neither were evidence of a deterioration (s 327(3(a)) nor additional relevant evidence (s 327(3)(b)). The plaintiff's submissions referred to the events the subject of those paragraphs as a "demise" of the marriage. In my opinion this puts the evidence too high, as the statement (signed rather than sworn) is equivocal as to the state of the relationship. It establishes a separation. Further, as the Appeal Panel noted, the co-relationship between the events of August 2022 and the plaintiff's workplace injury are, on a generous view unclear. In my view, even accepting those matters, it would have been open to the AMS to assign a class rating of 2.
4. So far as the first "purple passage" is concerned, it must be seen in the context of the reasons given by the AMS for excluding the additional statement. It is entirely different from the second "purple passage," to which see below. I accept that the statement was unhelpful, irrelevant and superfluous. However, in my opinion, it did not form part of the Appeal Panel's reasoning and conclusions.
5. I make one additional observation. Submissions were made before the Appeal Panel and before me as to how the dates of the discovery of the affair and the separation could be proved. In my opinion the plaintiff has done so in a conventional way in paras [18] to [20] of the additional statement.
6. This ground of appeal fails.

Ground 2 - class categorisations

1. Mr Romaniuk submitted that the Appeal Panel adopted an erroneous approach in dealing with the plaintiff's appeal after it had determined not to receive the material. He submitted that the Appeal Panel did not engage with the plaintiff's clearly articulated case that the AMS had made material factual errors. Rather, he submitted, the Appeal Panel adopted the history as taken by the AMS as correct, which caused it to erroneously conclude there was no error in how the AMS performed the class categorisation.
2. In his written submissions, Mr Romaniuk set out the descriptors for class ratings 2, 3 and 4 for social functioning and submitted that the "demise" of the plaintiff's marriage amounted to something of objective significance and that it was "tolerably clear" as to how the PIRS ascribes severity to this type of situation. It was in this context, he submitted, that the plaintiff requested a re-examination by the Appeal Panel. Mr Romaniuk submitted that a marriage breakdown is prima facie suggestive of deterioration because it places a class rating into a more serious rating under the PIRS. I pause to observe that there is no appeal ground raised about the Appeal Panel erring by failing to re-examine the plaintiff, but rather a failure to consult the plaintiff for the purpose of either failing to accept and act on the statement or failing to deal with her substantial and articulated case, or both.
3. As the Appeal Panel rejected the plaintiff's additional statement, Mr Romaniuk submitted that it failed to engage with the plaintiff's clearly articulated case and that this amounts to a denial of procedural fairness and jurisdictional error, as well as a failure by the Appeal Panel to perform its task under ss 327 and 328 of the WIM Act and to provide reasons. Mr Romaniuk submitted that this was an impermissible conclusion, as were the findings about the marriage breakdown contained in the additional statement.
4. Mr Romaniuk submitted that although it was logically correct for the Appeal Panel to set out the reasons of the AMS, the Appeal Panel ought to have engaged with what the plaintiff submitted were errors on the part of Professor Glozier. Mr Romaniuk submitted that what the Appeal Panel did instead, was reject the additional statement, conclude the assessments of class ratings were correct and failed to deal with the complaints made at paras [1] to [17] of the additional statement.
5. Ms Roberts, in reply to the contention that the Appeal Panel failed to respond to a substantial and articulated case, referred to comments by Kirk JA in Ming v Director of Public Prosecutions [2022] NSWCA 209 where his Honour noted at [15] that: "a risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review."
6. Ms Roberts submitted that the information that the plaintiff claims the Appeal Panel did not have regard to in her additional statement is the criticism of the AMS's process. However, she submitted that the Appeal Panel did have regard to this information when it assessed whether to accept the additional statement as fresh evidence, as well as when it addressed the plaintiff's submissions in support of higher class categorisations existing in reports before the AMS throughout its reasons. One example is in answer to the plaintiff's contention that the AMS misunderstood the plaintiff's management of finances.
7. Ms Roberts submitted that a mere disagreement about a level of impairment is not sufficient to demonstrate error, and she relied on Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633; Ferguson v New South Wales [2017] NSWSC 887; Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker). She submitted that the descriptors given of the PIRS categories were not intended to be exclusive: see Parker at [68]. In Ms Roberts' submission, the Appeal Panel did not fail to address arguments before it and properly concluded that the AMS's class ratings had been open to him on the evidence before him such that this ground is not made out.

Consideration

1. This ground of appeal largely assumes that the additional statement ought to have been admitted by the Appeal Panel. I have found that it was open to the Appeal Panel to exclude it.
2. In my opinion it is clear from the record that the Appeal Panel engaged with the plaintiff's articulated case. It is not to the point that it extracted portions of the AMS's findings, with which it agreed. In my view no error has been demonstrated that it failed to engage independently with the material before the AMS. There was no failure to consult.
3. But for the second "purple passage" which in my opinion was an irrelevant consideration taken into account by the Appeal Panel, I would have found that that that the adoption of the AMS's class ratings were open to the Appeal Panel. Indeed, in my opinion, the adoption by the Appeal Panel of the class rating with respect to social and recreational activities was clearly open to it on the evidence. For reasons that immediately follow, in my opinion the same cannot be said with respect to the assigned class for CPP.
4. This ground of appeal is not made out.

Ground 3 - Appeal Panel's use of evidence that it rejected

1. It is not in dispute between the parties that the Appeal Panel in fact rejected the plaintiff's additional statement.
2. In submitting that the Appeal Panel erred in its method of accepting the AMS's class categorisations, Mr Romaniuk said that it was also an error for the Appeal Panel to have concluded that the plaintiff had typed out the additional statement, which it had rejected as fresh evidence, and used this against her to uphold the decision of the AMS.
3. I set out paras [52] to [53] of the Appeal Panel's reasons dealing with the CPP category:- "[52] Again, many of the appellant's submissions focus on her supplementary statement which we rejected. [53] We point out however that the appellant was clearly capable of "typing a long document", and that statement, and did not demonstrate any cognitive difficulties in so doing."
4. Ms Roberts conceded that this paragraph - the second purple passage in the Appeal Panel's reasons - was "unhelpful." She submitted however, that this observation by the Appeal Panel was an "aside" and not expressed as forming part of its reasons for concluding that there was no error in the assessment of the AMS. Ms Roberts reiterated that the Appeal Panel addressed records regarding the plaintiff's ability to study and it also noted that the assessment itself provided an opportunity to assess cognition.
5. To the extent that any error is found in this reference, Ms Roberts submitted that it should not be regarded as material, citing Mifsud v Pitador [2022] NSWSC 1010; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17. However, Ms Roberts conceded that if para [53] formed part of the Appeal Panel's logic of reasoning that Professor Glozier reached a decision open to him on the evidence, then it was illogical to do so, as that statement was not before it.
6. In reply, Mr Romaniuk submitted that reasons for decisions should reveal the path taken to come to the decision, and that the Appeal Panel's reasons reveal that path, which include paragraph [53], and he relied on the judgment of Basten AJ in Lancaster where his Honour adopted the observations of the High Court in Wingfoot Australia Partners Pty Ltd v Kovack (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) with respect to the standard of reasons required by a medical panel. In Wingfoot, the court held at [55]: "The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. 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, that 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."
7. Although Wingfoot concerned Victorian legislation, Basten AJ nevertheless considered that this passage was relevant to the WIM Act because it is based on a similar purpose, i.e., to ensure, to the extent possible, that any error of law in the reasoning of an Appeal Panel is revealed and may be subject to an application for judicial review: see Lancaster at [45]. Further, Mr Romaniuk relied upon the comments of Hayne J in Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57 where his Honour noted at [130] that "the reasons actually stated are to be understood as the recording of the steps that were in fact taken in arriving at that result."

Consideration

1. As I have said, it is not in dispute in these proceedings that the Appeal Panel rejected the plaintiff's additional statement. It follows that after giving its reasons for rejecting the statement, it ought to have formed no part of its reasons. In my view, it clearly did.
2. First, the Appeal Panel, having rejected the plaintiff's additional statement, as it was entitled to do, ought not to have relied upon it at all. Second, there was no evidence from any person that the plaintiff had in fact typed out the document. On its face, it appears that the document was prepared by Ms Luck's solicitors in pursuance of her appeal before the Appeal Panel. So much is apparent from the substance and form of the document. It would likely be rare for a plaintiff to use headings that correspond to sections of complex legislation, and numbered paragraphs. Third, having rejected the document, it was impermissible for the Appeal Panel to make any assumptions or express any conclusions or opinions arising from the making of the statement. In particular it was an error to make findings that went directly to the class descriptors of CPP. Fourth, in coming to the conclusion at the end of para [53], the Appeal Panel failed to give the plaintiff an opportunity to be heard. In my opinion, looking at paragraphs [48] to [63] of the Appeal Panel's reasons, it is clear beyond measure that it relied upon the plaintiff's statement - which it had rejected - to conclude that the AMS's assessment was open to him on the evidence.
3. As to whether or not para [53] was material to the Appeal Panel's decision on CPP, it is difficult to understand the purpose of paragraphs [52] and [53] of the Appeal Panel's reasons other than that they logically form part of its reasons in concluding that the class categorisations made by the AMS were open to him: see generally Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18.
4. To suggest that para [53] is a "purple passage" is a significant understatement. It is more than unhelpful, and hardly ornate. It is evident that the Appeal Panel took into account evidence which it had rejected and came to a conclusion based on that evidence which it found did not support the plaintiff's case. To have done so, in my opinion, means that the Appeal Panel took into account an irrelevant consideration which founds jurisdictional error, and is an error of law of the face of the record. Furthermore, in coming to the (impermissible) conclusion that the plaintiff had no demonstrated cognitive difficulties when typing out the document, the Appeal Panel deprived the plaintiff of procedural fairness.
5. In oral submissions, Ms Roberts conceded that if I were to make this finding, it was inevitable that I would quash the Appeal Panel's decision, set aside the Certificate of Determination and remit the matter to PIC before a differently constituted Appeal Panel.
6. I am satisfied that this ground of appeal is made out.

Disposition

1. Taking all matters into account, I am satisfied that the plaintiff has made out ground 3.
2. The parties provided draft orders in the event that the plaintiff was successful. They are as follows: 1. The decision of the Third Defendant made on 16 November 2022 is quashed. 2. The Certificate of Determination dated 22 December 2022 is set aside. 3. The Plaintiff's application to appeal against a decision of a medical assessor dated 15 August 2022 is remitted to the Second Defendant for referral to a differently constituted Appeal Panel for determination according to law. 4. The First Defendant pay the Plaintiff's costs of the proceedings, as agreed or assessed.
3. I agree that these proposed orders are appropriate. As to costs, both Ms Roberts and Mr Romaniuk agreed that costs should follow the event.

Orders

1. I make the following orders: 1. The decision of the Third Defendant made on 16 November 2022 is quashed. 2. The Certificate of Determination dated 22 December 2022 is set aside. 3. The Plaintiff's application to appeal against a decision of a medical assessor dated 15 August 2022 is remitted to the Second Defendant for referral to a differently constituted Appeal Panel for determination according to law. 4. The First Defendant is to pay the Plaintiff's costs of the proceedings, as agreed or assessed.

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: 19 July 2023