Masters v Healthshare NSW

Legislation Cited: Personal Injury Commission Rules 2021 (NSW), r 128
Workers Compensation Act 1987 (NSW), ss 65A, 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 323, 324, 327, 328

Cases Cited: Ballas v Dept of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Chalkias v New South Wales [2018] NSWSC 1561
Cheers v Mid Coast Council [2024] NSWSC 1553
Ferguson v New South Wales [2017] NSWSC 887
Jenkins v Ambulance Service of NSW [2015] NSWSC 633
Johnson v Suncorp Staff Pty Ltd [2024] NSWSC 102
Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
New South Wales Police Force v Registrar of Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88
Roads and Maritime Services v Wilson [2016] NSWSC 1499
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324
Ziraki v Australian Islamic House Liverpool Area [2019] NSWSC 1158

Texts Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021, ss 11.1, 11.11, 11.12

Category: Principal judgment

Parties: Tracey Masters (Plaintiff)
Healthshare NSW (First Defendant)
Personal Injury Commission (Second Defendant) (Submitting Appearance)
Catherine McDonald, Dr Douglas Andrews and Dr
Michael Hong as a Medical Appeal Panel constituted
under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant) (Submitting Appearance)

Representation: Counsel:
B McManamey (Plaintiff)
J Hart (First Defendant)
Solicitors:
One Law (Plaintiff)
Gair Legal (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2024/00441625

Publication restriction: Nil

JUDGMENT

1. This application for judicial review relates to a decision dated 27 August 2024 by a Medical Appeal Panel (Appeal Panel) of the Personal Injury Commission (Commission), which reviewed a medical assessment certificate (MAC) issued by Dr Clayton Smith and dated 26 April 2024. Dr Smith assessed a 19% whole person impairment (WPI) to the plaintiff, Ms Tracey Masters, as a result of a psychological injury sustained while in the employ of the first and only active defendant, Healthshare NSW. The Appeal Panel revoked Dr Smith’s MAC and issued its own, assessing an 8% WPI. The plaintiff now seeks to have the Appeal Panel’s decision quashed and the matter remitted.

2. The crucial aspect of the Appeal Panel’s decision was its finding that Dr Smith erred in classifying Ms Masters’ impairment in the area of concentration, persistence and pace as a Class 3 impairment for the purposes of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (Guidelines). Ms Masters submits that, in reaching this conclusion, the Appeal Panel misunderstood its statutory task, which was to determine whether Dr Smith’s classification was “open to him” or “glaringly improbable”. She also submits that the Appeal Panel’s approach was inconsistent with New South Wales Police Force v Registrar of Workers Compensation Commission of New South Wales [2013] NSWSC 1792.

3. For the following reasons, Ms Masters’ summons, filed 27 November 2024, will be dismissed with costs.

Background facts summarised

4. Ms Masters sustained a psychological injury as the result of workplace bullying which occurred while she was employed by Healthshare as a catering assistant at Liverpool Hospital, where she worked for 35 years. It is not in dispute that the deemed date of her injury is 23 May 2022, being the date on which Ms Masters ceased working for Healthshare.

5. On 18 September 2023, Ms Masters made a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (1987 Act) with respect to a claimed 18% WPI. She relied on reports dated 5 June 2023 by a Dr Assad Saboor.

6. Ms Masters’ claim was disputed by Healthshare, who alleged that her WPI fell below the minimum 15% WPI required by s 65A(3) of the 1987 Act. Healthshare relied on a report dated 15 December 2023 by a Dr Tanveer Ahmed, who assessed a 14% WPI.

(a) Dr Smith’s medical assessment

7. On 1 March 2024, Ms Masters applied to the Commission for a determination of the WPI dispute. A number of documents were annexed to the form (Form 2) which was used to make the application, including a “Statement of Tracey Masters”, the medical reports of Drs Saboor and Ahmed (both of whom assessed Ms Masters’ impairment relating to concentration, persistence and pace as Class 3) and clinical notes from Yousif Hurmoz (Ms Masters’ psychologist), Amy Chau (a psychologist at Ms Masters’ general practice), Andrew Kako (Ms Masters’ general practitioner) and Blagoje Kuljic (Ms Masters’ psychiatrist).

8. The President of the Commission referred the matter to Dr Smith, who examined Ms Masters on 9 April 2024 and issued his MAC on 26 April 2024. The MAC diagnosed Ms Masters as having a persistent depressive disorder and assessed her at 19% WPI. Dr Smith’s essential findings were summarised in a form annexed to the MAC which was identified as a “PIRS Rating Form”. The form contained the following table:

9. Pausing here, it is convenient to explain at this stage that “PIRS” refers to the “Psychiatric Impairment Rating Scale”, being the scale provided for in ss 11.11 and 11.12 of the Guidelines. Section 11.11 of the Guidelines provides that the behavioural consequences of psychiatric disorders are to be assessed on six scales, each of which evaluates an area of functional impairment:

1. Self care and personal hygiene (Table 11.1)

2. Social and recreational activities (Table 11.2)

3. Travel (Table 11.3)

4. Social functioning (relationships) (Table 11.4)

5. Concentration, persistence and pace (Table 11.5)

6. Employability (Table 11.6).

10. Section 11.12 of the Guidelines provides that impairment across each of these areas is to be rated using class descriptors, with classes ranging from 1 to 5, in accordance with severity. The “class descriptors” referred to in s 11.12 are contained in the tables referred to above. Of sole relevance for present purposes is Table 11.5, which provides as follows:

Table 11.5: Psychiatric impairment rating scale — concentration, persistence and pace

Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.

Class 2 Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.

Class 3 Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

Class 4 Severe impairment: Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief concentration. Unable to live alone, or needs regular assistance from relatives or community services.

Class 5 Totally impaired: Needs constant supervision and assistance within institutional setting.

11. In addition to the summary contained in the PIRS Rating Form, Dr Smith considered Ms Masters’ concentration, persistence and pace at several points in the body of the MAC, particularly in documenting her experience attending TAFE courses. At pages 4-5 of the reasons in the MAC, for example, Dr Smith observed that:

[Ms Masters’] concentration has been affected. She has been having difficulties with her TAFE course, has trouble absorbing information, is fatigued easily, and has developed headaches.

She attends TAFE on a Thursday for a full day. She does not have to talk to people during class and does not socialise over lunch. She takes her phone out and plays with her phone to distract herself. She said she is the oldest student and has not made any friends. She said it is an eight-hour day, 9 to 4.30. She said that if it is stressful, she gets a headache and takes Panadol, and she is relieved when the day is over. She is passing her subjects with assistance.

12. Considering the statement annexed by Ms Masters to her application to the Commission at page 6 of the MAC, Dr Smith also observed that:

In the statement of the Applicant, dated 1 March 2024, she noted symptoms of anxiety and depression that were ongoing. She noted functional deficits associated with the injury. She noted she was enrolled in a Certificate 3 in Animal Care, having previously completed a Certificate 2. She noted she found it difficult to concentrate and comprehend the learning tasks and was getting help from the disability teacher at TAFE. She is easily stressed. She is distracted. She has trouble absorbing information. She often has headaches.

(b) The Appeal Panel proceedings and decision

13. On 23 May 2024, Healthshare filed an appeal against Dr Smith’s MAC. It was stated on the pro forma appeal document (Form 10) that the MAC assessment was made on the basis of incorrect criteria and contained a demonstrable error (see s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act)). In response to the question whether it requested “that the worker be re-examined by a Medical Assessor who is a member of the appeal panel?”, Healthshare selected “No”.

14. Elaborating on its grounds of appeal in its written submissions dated 24 May 2024 (which were annexed to the application for review), Healthshare reiterated that the MAC “contains demonstrable errors and/or is based on incorrect criteria”. Relevantly, Healthshare contended that Dr Smith had failed to consider relevant evidence, including medical reports, in assessing the PIRS category for concentration, persistence and pace and also applied scores inconsistent with the history taken from Ms Masters. Secondly, it was argued that Dr Smith failed to apply a deduction as required by s 323 of the 1998 Act.

15. In its written submissions, Healthshare emphasised that Ms Masters had reported to Dr Smith that she was undertaking a standard course at TAFE and had passed her subjects with some assistance from TAFE’s Disability Unit and that some of her problems at TAFE were caused by dyslexia (which was not attributable to the injury). It noted that Dr Smith found she had difficulties focusing because of fatigue and headaches. Healthshare also emphasised that Ms Masters reported that each morning she would scroll through her phone, sort out emails from Seek and make a to-do list. It also drew attention to the fact that Ms Masters had recently completed phone interviews and previously undertaken volunteer work for one eight-hour day per week for four weeks. In these circumstances, Healthshare submitted that Ms Masters’ impairment was consistent with a Class 2 and not a Class 3 impairment. It is well to set out [23]-[26] of Healthshare’s submissions:

23. The Appellant submits the Applicant worker is able to undertake a standard course at TAFE. At page 7 of the MAC, the MA refers to the statement of the Applicant worker dated 1 March 2024 at page 1 of the ARD where the Applicant worker confirms she had recently completed a Certificate II and was currently enrolled in a Certificate III tending to suggest she is able to read more than newspapers. There is no suggestion the worker is undertaking the course at a slower pace however the evidence confirms she is receiving assistance from the Disability Unit at TAFE.

24. The Applicant worker is able to attend TAFE for a full day on Thursday and was previously attending volunteer work for one eight-hour day per week. The MA recorded the Applicant worker experienced difficulty focusing due to fatigue and headaches.

25. The Appellant submits the evidence served and relied upon, and the history taken during MA examination, confirms the Applicant worker’s concentration, pace and persistence impairment is congruent with Class II, not Class III under the PIRS.

26. Accordingly, the MA has made a demonstrable error and/or applied incorrect criteria in classifying the Applicant worker’s impairment in concentration, persistence and pace as Class III. The Appellant therefore seeks a correction to the impairment rating.

16. On 17 June 2024, Ms Masters lodged a pro forma form (Form 10A) opposing the appeal from Dr Smith’s decision. In response to the question whether “the appeal can be decided by an Appeal panel solely on the basis of the written application and any written notice of opposition?”, Ms Masters selected “Yes”.

17. In response to the Healthshare’s submissions in relation to the issue of concentration, persistence and pace, Ms Masters’ accompanying submissions emphasised that the descriptors for Class 2 and Class 3 used in Table 11.5 were only examples of activities which would indicate an assessable level of disability and, moreover, the boundaries between the classes are not “bright line boundaries” (citing Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [62]-[65] per Garling J). Ms Masters submitted that Dr Smith’s classification of Class 3 for this category “was consistent with his examination and the evidence tendered”. She also emphasised that Dr Smith recorded her as reporting that she had difficulty concentrating on and comprehending tasks at TAFE, that she is easily stressed and distracted and that she has trouble absorbing information and experiences headaches on stressful days. She denied that Dr Smith had found that any of these restrictions were attributable to her dyslexia and submitted that, in all these circumstances, the assessment of a Class 3 impairment was consistent with the evidence before Dr Smith.

18. On 27 August 2024, having conducted a review of Dr Smith’s MAC without re-examining Ms Masters, the Appeal Panel revoked the existing MAC and issued its own, which assessed an 8% WPI. It concluded that Ms Masters’ impairment relating to concentration, persistence and pace was Class 2 and that Dr Smith was in error in assessing it as Class 3.

19. Early in its reasons, the Appeal Panel said that it had conducted a preliminary review of the original medical assessment in accordance with Procedural Direction PIC7 and determined that it was not necessary for Ms Masters to undergo a further medical examination because there was sufficient information on the file to determine the appeal. The Appeal Panel also stated that it had considered the parties’ written submissions, even though they were not repeated in full.

20. On the issue of concentration, persistence and pace, the Appeal Panel referred to the relevant section of the table contained in the PIRS Rating Form (see at [8] above). Reference was then made to the sections in the body of the MAC set out at [11] and [12] above. The section of the MAC set out at [12] above was described by the Appeal Panel as being consistent with the notes of Mr Hurmoz. Those notes were summarised at [36] of the Appeal Panel’s reasons:

Mr Hurmoz wrote on 8 February 2023 that Ms Masters was “not wanting to go back to TAFE as it is challenging and takes her out of her comfort zone”. The references to challenges continued but on 1 March 2023 Mr Hurmoz note that Ms Masters had come to an agreement with her teacher for assistance with an assessment. On 9 March he noted that Ms Masters’ motivation was building “as she finds her place and achieves more at tafe.” On 15 March Ms Masters spoke of long days but also good days as she had passed an exam. In April 2023 Mr Hormoz recorded that Ms Masters had challenges adjusting to computers. Mr Hurmoz documented Ms Masters’ struggles with her course but his notes show that she continued with it.

21. The Appeal Panel noted that the clinical notes of Drs Kuljic and Kako were to similar effect and that Dr Kako had recorded that Ms Masters successfully passed her TAFE course and had obtained a Certificate II in Animal Care. Accordingly, the Appeal Panel noted at [38] that “[t]he evidence shows that Ms Masters has completed a Certificate II in Animal Care and is undertaking Certificate III, with assistance”. It then referred to Ms Masters’ statement that she was assisted at TAFE by “the disability teacher”. The Appeal Panel found that there was “nothing in the evidence to show if that assistance is provided because of her injury or because of dyslexia”.

22. Finally, the Appeal Panel referred to the examples of a Class 2 impairment set out in Table 11.5 and concluded at [40] (emphasis added):

Those examples are consistent with Ms Masters’ history. She has completed one course and started another, which she continued to undertake as at the date of the MAC. While she requires some assistance, she has completed the course in a reasonable time frame and her experience falls squarely in class 2. The Medical Assessor was in error to assess her in class 3.

23. On a fair reading of the Appeal Panel’s reasons and having regard to the parties’ clear understanding that the asserted basis for the review was the application of incorrect criteria and demonstrable error, the Appeal Panel’s conclusion that Dr Smith “was in error to assess [Ms Masters] in class 3” is a finding which upheld the complaint of demonstrable error.

Consideration and determination

(a) Legal framework

24. Appeals to a Medical Appeal Panel of the Commission are “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” (see s 328(2) of the 1998 Act). As noted above, Healthshare relied in its appeal to the Appeal Panel on the following two grounds of appeal, as set out in s 327(3) of the 1998 Act:

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

25. The meaning of “incorrect criteria” in s 327(3)(c) has been considered by the Court of Appeal in cases such as Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 and Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88. In the latter case, Mason P (with whom McColl and Bell JJA agreed) observed at [40]-[42]:

The expression “incorrect criteria” is undefined in the Act. In Campbelltown City Council v Vegan [2004] NSWSC 1129 at [58], Wood CJ at CL referred to a statement in the minister's Second Reading speech to the effect that s 327(3)(c) was designed to cover circumstances where the WorkCover Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the “criteria” upon which assessment is to be based are to be found in any relevant guides including guides issued by WorkCover. His Honour observed (at [60]) that this view drew support from the requirement in s 322(1) that the assessment is to be made “in accordance with the WorkCover Guidelines”.

The Chief Judge's decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372). Basten JA, with whose reasons McColl JA agreed said (at 391 [95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be “demonstrable errors” within s 327(3)(d), they would not usually satisfy the “incorrect criteria” ground. His Honour observed there that the latter ground “must refer to such matters as the tests set out in the Guidelines, where they are applicable”.

I agree.

26. The meaning of “demonstrable error” in s 327(3)(d) was considered in detail by the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [76]-[87]. For present purposes, it suffices to reproduce the following paragraphs (footnotes omitted):

[77] … Commencing with the text, there are two significant limitations for present purposes. First, although the expression “demonstrable error” is not defined in the Management Act, the use of the qualifying word “demonstrable” in a gateway provision such as s 327 may be taken as intended to convey the degree of strictness of scrutiny to which the decision of the approved medical specialist may be subjected. In this regard it has been said that error alone is not sufficient and that such an error must be “material”. Both of those statements accord with the context of the limited right of appeal under s 327. In Pitsonis, Mason P described the “appeal” to the Panel as:

… not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh. …

[78] Second, s 327(3)(d) requires that such an error be “contained” in the certificate; that is, the error must be apparent in the certificate of the approved medical specialist. Importantly however, there is no express limitation on the material to which the Panel may have regard when assessing whether the certificate “contains” a demonstrable error.

…

[86] That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist, is consistent with the tentative remarks of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales:

The concept of “demonstrable error” is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error “on the face of the record” for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word “demonstrable” does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error.

[87] On the other hand, it is not in dispute that an error is not demonstrable merely because the Panel disagrees with the opinion of the approved medical specialist. That accords with the example given in the second reading speech relating to the Workers Compensation Legislation Amendment Bill 2001 (No 2) (NSW), by which s 327 was introduced into the Management Act, as follows:

A demonstrable error would essentially be an error for which there is no information or material to support the finding made — rather than a difference of opinion.

27. The status of the Guidelines, which must be applied, has also been considered on a number of occasions. It suffices to repeat the summary I gave in Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095 at [30]:

Although the Guidelines are neither a statute nor subordinate legislation, they have been held to have the effect of subordinate legislation: see Ballas v Dept of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] per Bell P and Payne JA They are issued under s 376 of the 1998 Act and, by dint of the operation of ss 3(1) and 5(2) of the Interpretation Act 1987 (NSW), they are also an “instrument” to which that Act applies subject to a contrary intention. Generally speaking, therefore, the ordinary principles of legislative construction apply to the Guidelines (see Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores [2017] NSWSC 363 at [61]–[63] per N Adams J). Thus considerations of text, context and purpose are important (see SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] per Kiefel CJ, Nettle and Gordon JJ, [37]–[40] per Gageler J). Appropriate allowance needs to be made for the form of the Guidelines, which is not the form of primary or secondary legislation.

28. As to the task of a medical assessor in assessing psychiatric impairment under the PIRS, in Ballas v Dept of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [93]-[94], Bell P (as the Chief Justice then was) and Payne JA (Emmett AJA agreeing) observed:

Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to “social and recreational activities” on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.

Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to “self care and personal hygiene”, “social and recreational activities”, “travel”, “social functioning (relationships)”, “concentration, persistence and pace” or “employability”. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.

29. In Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929, after referring to the descriptors for Class 2 and Class 3 of the PIRS table for “social functioning”, Basten AJ observed (at [64], citations omitted):

These examples are apposite because the plaintiff complained that he had been placed in class 2, rather than class 3, with respect to social functioning. Two observations may be made about such a complaint. First, as the guidelines indicate, “[e]valuation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method”. It is, self-evidently, no function of this Court to review the classification by the Appeal Panel. Nor, as has occasionally been considered, would it be appropriate for this Court to identify from the reasons that the Appeal Panel has asked itself “the wrong question”, thereby establishing error of law. While extreme cases where error may be established can be imagined, they will be readily apparent because the Appeal Panel has confused one appellant with another or made some equivalent manifest error, sufficient to constitute an error of law on the face of the record, or jurisdictional error.

(b**)** Disposition

30. Ms Masters must establish jurisdictional error or error of law on the face of the record in order to succeed (see generally Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [18]-[20] per Leeming JA with whom Gleeson and Payne JJA agreed). For the following reasons, she has failed to do so.

31. The first ground of review raised in the summons is as follows:

The third defendant erred in law and made a jurisdictional error when it failed to properly consider whether the assessment of concentration persistence and pace as assessed by the medical assessor was an assessment that was not available to him.

32. In support of this ground, Ms Masters cited Jenkins and Ferguson v New South Wales [2017] NSWSC 887. In Jenkins, Garling J observed that “the boundaries between the classes [in the PIRS tables] are not of themselves bright line boundaries”, and that the examples of activities provided for in each class “are not necessary to be found in each case, but may, in any particular case, be sufficient” (at [65]). His Honour went on to conclude (at [73]):

It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.

33. Although Ms Masters does not identify what aspect of Campbell J’s decision in Ferguson is relied upon*,* it would appear to be the following (at [24]):

The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.

34. Ms Masters submits that the effect of these authorities is that the Appeal Panel was obliged to determine the appeal by asking whether Dr Smith’s assessment was “open to him or in the alternative was glaringly improbable”. She contends that the Appeal Panel failed to do this, having regard to the following matters:

(a) Contrary to s 11.1 of the Guidelines, the Appeal Panel re-evaluated Ms Masters’ concentration, persistence and pace without conducting a medical examination. (b) The Appeal Panel “considered that the fact that [Ms Masters] completed the course was definitive”. (c) The Appeal Panel failed to refer to any Class 3 descriptors and simply “proceeded by the method whereby its view was that Class 2 was the appropriate assessment”.

35. I do not accept these contentions. As Healthshare points out in its written submissions, the proposition that the Appeal Panel was required to determine whether Dr Smith’s assessment was “glaringly improbable” is inconsistent with the observations of Adamson J (as her Honour then was) in Chalkias v New South Wales [2018] NSWSC 1561 at [29], in which her Honour discussed Ferguson (with which I respectfully agree):

I reject the submission that the Panel’s review is confined to cases where the Medical Assessment, or some aspect of it, is “glaringly improbable”. The submission finds no support in the wording of the WIM Act, which requires only that an error be “demonstrable” or that there be “incorrect criteria”. These expressions, which have been the subject of judicial consideration (see above), are to be understood in accordance with their plain meaning. It appears from Ferguson v New South Wales at [24] (Campbell J) that the Medical Panel in its reasons used the expression “glaringly improbable”. It would be a misreading of Campbell J’s reasons to conclude that his Honour intended to suggest that the expression formed any part of the test for error in the context of ss 327 or 328.

36. For similar reasons, Ms Masters’ submission that the Appeal Panel was obliged to ask itself whether Dr Smith’s assessment was “open to him” is also apt to mislead. The statutory task of the Appeal Panel was to determine whether Dr Smith’s MAC contained a “demonstrable error” or applied “incorrect criteria”. As noted at [23] above, the Appeal Panel concluded that it was a demonstrable error for the MAC to assess concentration, persistence and pace as a Class 3 impairment. In reaching this conclusion, the Appeal Panel was bound by the meaning of “demonstrable error”, including the principle that “an error is not demonstrable merely because the Panel disagrees with the opinion of the approved medical specialist” (see Vannini at [87]). However, it does not follow that the Appeal Panel was obliged to determine the question of demonstrable error by asking whether Dr Smith’s assessment was “open”.

37. In my view, the Appeal Panel’s approach was consistent with a proper understanding of the statutory meaning of “demonstrable error”. This is demonstrated by the Appeal Panel’s statement, at [40] of its reasons, that while Ms Masters “requires some assistance, she has completed the course in a reasonable time frame and her experience falls squarely in class 2” (emphasis added). The emphasised words demonstrate that the Appeal Panel did not merely disagree with Dr Smith’s Class 3 classification as a matter of opinion. Rather, it regarded Dr Smith’s classification as clearly incorrect in light of the medical history taken by Dr Smith, the various clinical notes before Dr Smith and the Class 2 descriptors in Table 11.5 (all of which it addressed prior to expressing the ultimate conclusion that Dr Smith had erred).

38. The fact that the Appeal Panel did not explicitly refer to the Class 3 descriptors is not decisive. It is implicit in the Appeal Panel’s reasons that it was aware of, and considered the appropriateness of, those class descriptors. As previously mentioned, the Appeal Panel also stated that, although it would refrain from repeating the parties’ submissions in full, it had “considered them”. There is no reason to doubt that statement.

39. Nor do I accept Ms Masters’ submission that the Appeal Panel erred in re-evaluating concentration, persistence and pace without first conducting a medical examination, contrary to s 11.1 of the Guidelines. First, it is unclear how this submission supports Ms Masters’ claim that the Appeal Panel erred in failing to ask itself whether Dr Smith’s assessment was open to him or glaringly improbable. Secondly, as noted above, Ms Masters answered “Yes” in her notice of opposition to the question whether “the appeal can be decided by an Appeal panel solely on the basis of the written application and any written notice of opposition?”. Thirdly, and in any event, I do not accept Ms Masters’ construction of the provision. Section 11.1 provides as follows:

This chapter lays out the method for assessing psychiatric impairment. The evaluation of impairment requires a medical examination.

40. A medical examination was undertaken by Dr Smith. There is nothing in the language of s 11.1 which suggests that a Medical Appeal Panel reviewing a medical assessor’s evaluation of impairment in accordance with the PIRS is itself obliged to undertake a fresh medical examination. There is a discretion whether or not to conduct a re-examination (see, for example, Cheers v Mid Coast Council [2024] NSWSC 1553 at [84] per Basten AJ). In exercising that discretion, the Appeal Panel would exercise clinical judgment, which judgment would take into account the position of the parties (noting here that neither party sought a re-examination), as well as the clear statement in r 128(2) of the Personal Injury Commission Rules 2021 (NSW) that a panel may determine proceedings solely on the basis of the written application.

41. For all of these reasons, the first ground of judicial review is rejected.

42. The second ground of judicial review is as follows:

The third defendant erred in law and made a jurisdictional error when it asked itself the wrong question. The correct question was whether the finding by the assessor of class 3 for concentration persistence and pace was inconsistent with the descriptors for class [sic]. The Third Defendant instead asked whether the facts were consistent with class 2 in circumstances where the descriptors of the two classes addressed different things.

43. Mr McManamey, who appeared for Ms Masters, confirmed that this ground overlapped with the first ground of review. It appears, however, that two additional arguments may have been raised.

44. First, I reject any suggestion that the Appeal Panel failed to give sufficient reasons for its conclusion that Dr Smith was in error. It is uncontroversial that the Appeal Panel was subject to an implied statutory duty to give reasons (see Campbelltown City Council at [26] per Handley JA and [117] per Basten JA]). However, the Appeal Panel did give reasons for concluding that there was demonstrable error. Those reasons are, in my view, readily comprehensible.

45. Secondly, Ms Masters submits that the Appeal Panel identified demonstrable error in Dr Smith’s MAC in the manner described in New South Wales Police Force at [33] per Davies J. In a statement which has been endorsed on a number of subsequent occasions (see, for example, Johnson v Suncorp Staff Pty Ltd [2024] NSWSC 102 at [94]-[95] per Griffiths AJ and the authority cited therein), Davies J observed:

[I]f an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.

46. Ms Masters submits that the Appeal Panel’s approach was diametrically opposed to that described by Davies J, since it made “an assessment and as a result of that assessment said that the assessor must have been in error”. Put differently, Ms Masters submits that the Appeal Panel was not entitled to use its assessment that a Class 2 classification was clearly appropriate as the basis for identifying a demonstrable error, since it was only entitled to engage in that sort of assessment after identifying demonstrable error.

47. I do not accept this submission. The Appeal Panel did not conduct its own assessment of concentration, persistence and pace and then find that Dr Smith’s MAC contained a demonstrable error on grounds that it differently classified Ms Masters’ impairment. Instead, the Appeal Panel’s essential finding was that there was a demonstrable error in Dr Smith’s assessment of a Class 3 impairment in circumstances where the medical history taken by Dr Smith, the various clinical notes before Dr Smith and the terms of the Guidelines all indicated that a Class 2 impairment was clearly the correct one.

48. Davies J’s statement does not stand for the proposition that an Appeal Panel is not entitled to reason in this way. Subsequent authorities make clear that Davies J’s reference to an appeal panel “assessing” a worker is a reference to an appeal panel exercising the “powers of a medical assessor” provided for under s 324 of the 1998 Act (see, for example, Johnson at [95], Ziraki v Australian Islamic House Liverpool Area [2019] NSWSC 1158 at [74] and Roads and Maritime Services v Wilson [2016] NSWSC 1499 at [34] all of which refer to Davies J’s statement in connection with an appeal panel’s ability to “re-examine” a worker, this being a power provided for under s 324). Section 324 refers, in turn, to the abilities of medical assessors to consult with medical practitioners, call for the production of medical records and require the worker to submit him or herself for medical examination.

49. The Appeal Panel in the present case did not exercise these powers. Nor did either party ask for these powers to be exercised. As noted above, Healthshare answered “No” when asked whether it requested “that the worker be re-examined by a Medical Assessor who is a member of the appeal panel?”. And Ms Masters answered “Yes” when asked whether “the appeal can be decided by an Appeal panel solely on the basis of the written application and any written notice of opposition?”.

50. Accordingly, the second ground of review is rejected.

Conclusion

51. For all these reasons, the summons will be dismissed and the plaintiff ordered to pay the first defendant’s costs.

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