McKEE v ALLIANZ AUSTRALIA INSURANCE LTD

Dismiss the appeal with costs. 41 BASTEN JA: The primary issue raised by this application for leave to appeal is whether a review panel constituted under the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act") is restricted to correction of error in the respect identified in the application, or whether the review extends to the whole of the initial medical assessment. 42 The issue arose out of a medical dispute following an accident in which the appellant suffered a number of injuries. A medical assessor certified that his degree of permanent impairment was not greater than 10%, thereby disentitling him to damages for non-economic loss. The appellant sought review on the basis that the assessor was incorrect in his assessment of one specific injury. The review panel agreed with the appellant in that respect and corrected the error. Absent any other variation in the assessment, the appellant's degree of permanent impairment would then have been in excess of 10%, allowing him to recover non-economic loss. However, the review panel reassessed the degree of impairment flowing from a separate injury and reduced the proportion ascribed to that injury by the medical assessor. As a result, the appellant remained unable to obtain damages for non-economic loss. 43 The appellant commenced proceedings for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) asserting that the review panel had exceeded its statutory jurisdiction in purporting to interfere with the initial medical assessment of impairment with respect to the second injury, no dispute in that regard having been raised by the parties. 44 The summons was heard by James J on 6 September 2007, his Honour holding that the review panel was not so restricted and that it was entitled, as it did, to review all aspects of the question of whole person impairment which had been the subject of a medical assessment under Part 3.4 of the MAC Act. By judgment delivered on 4 October 2007, his Honour dismissed the summons: see McKee v Allianz Australia Insurance Limited [2007] NSWSC 1067. 45 On the appeal (though not, it would seem, before the primary judge), the appellant raised a second point which involved a number of component steps. The first step was that if the review panel were not confined to the error identified in the application for review, the review panel was nevertheless not obliged to review the whole of the medical assessment, but had a discretion as to the extent of the review undertaken. In reply the respondent (being the third party insurer responding to the claim) argued that both the MAC Act and the relevant procedural Guidelines made under it required a full review of the initial medical assessment. 46 The second step arose from the respondent's reliance upon the Guidelines, the appellant asserting that if only the relevant clause in the Guidelines obliged the panel to conduct a full review in any case, it was invalid. 47 A third step, which depended upon the review panel having a power, but no obligation, to review the whole of the medical assessment, was that the panel had erred in the present case by treating itself as obliged to undertake such a review, rather than noting that it had a power and considering whether it was appropriate in the circumstances of the case to exercise the power. Background 48 The appellant was injured in a motor vehicle accident which occurred on 9 June 2003. He received injuries to both knees, his left shoulder and his spleen, which was surgically removed. He made a claim for damages, to which the respondent was the defendant. A dispute arose between the parties as to the degree of permanent impairment suffered by the appellant. That being a matter identified in s 58(1) of the MAC Act, the matter was referred for medical assessment pursuant to s 60. The MAC Act provides that no damages can be awarded for non-economic loss unless the degree of permanent impairment is greater than 10%: s 131. 49 The medical assessor was required to apply the Guidelines for the assessment of the degree of permanent impairment (1 September 2005) ("the permanent impairment Guidelines"), issued by the Motor Accidents Authority of New South Wales ("the Authority") pursuant to s 44(1)(c) of the MAC Act. These guidelines required assessment of each separate injury as a percentage of "whole person impairment". The medical assessor allowed 1% for impairment of the left shoulder and 8% for impairment of the left lower leg. He allowed nothing for the injury to the right knee, nor for the loss of the spleen. This gave a total whole person impairment of 9%, being a figure "not greater than 10%". That conclusion, identifying the injuries taken into account, was recorded in a certificate dated 23 June 2006. 50 On 14 July 2006, the appellant filed an application for review of that assessment on the basis that it was incorrect in a material respect. The error was identified in the following terms, by reference to the statement of reasons provided by the assessor: "Page 4 top paragraph - 'His spleen (was) removed'. Page 10 last paragraph - '… as well as a ruptured spleen requiring splenectomy.' Page 13, third paragraph - 'Diagnosis: Status post-splenectomy for splenic rupture. Impairment: 0% impairment.' Page 14, Table of Body Parts; paragraph 2, Abdomen - splecectomy [sic] - 0% WPI.'" 51 The next part of the application asked "[w]hat is the error or mistake", which was answered in the following terms: "The Assessor should have allowed a 3% whole person impairment assessment for post-traumatic splenectomy in accordance with paragraph 8.13 of the MAA Impairment Assessment Guidelines issued 1 September 2005 referred to on p 51, a copy of which is enclosed for your attention." 52 The third question asked in the application form was "[h]ow is this material to the outcome of the assessment", to which the appellant responded: "Assessor Long has assessed the claimant as suffering from 9% WPI. If the 3% WPI is added for the loss of the spleen then the claimant would have a 12% WPI entitling him to non-economic loss." 53 The matter was referred by the proper officer of the Authority to a review panel. The review panel accepted the need for correction with respect to the loss of the spleen and included 3% permanent impairment for that item. However, it also reassessed the assessor's percentage with respect to the left knee and reduced it from 8% to 6%. The result was that the degree of permanent impairment of the injured person was reassessed at 10%, a figure still not greater than 10%, thus continuing to exclude the recovery of damages for non-economic loss. Proceedings in the Court 54 The matter came before this Court by way of an application for leave to appeal, the amount in issue not being shown to have a value of $100,000: Supreme Court Act, s 101(2)(r). However, the questions raised by the application are of general importance in relation to the administration of the MAC Act and leave is not opposed by the respondent. Accordingly, there should be a grant of leave to appeal. 55 The appeal is concerned primarily with the limits of the statutory jurisdiction (or power) of the review panel. There was no dispute as to the course in fact taken by the review panel, nor was there any dispute but that there would be jurisdictional error, warranting intervention by the Court, if the appellant's construction of the power conferred on the panel were correct. Principal elements of statutory scheme for review 56 Before the primary judge much attention appears to have been focused on the scope of the review available under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act"), and remarks in that regard in the judgments of this Court in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372. Submissions on the appeal referred in addition to the decision in Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116, also concerned with the provisions of that Act, but delivered after the judgment of the primary judge in this matter. Although it will be necessary to refer to the reasoning in Siddik in due course, the primary focus of this appeal must be the powers of the review panel, determined by reference to the relevant statutory provisions (and in particular s 63) of the MAC Act. Section 63 provides: " 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (5) Section 61 applies to any such new certificate." 57 Section 57 contains a number of definitions, including medical dispute, which "means a disagreement or issue to which this Part applies". Section 58 provides: " 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters: … (d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident …. (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor." 58 The term "the proper officer of the Authority" is defined to mean "the officer designated by the Authority for the purpose": s 60(3). Section 61 then provides: " 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to: (a) whether the degree of permanent impairment of the injured person is greater than 10% … is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned." Scope of review 59 The approach of the respondent, accepted by the primary judge, was that the subject-matter of review was "the assessment" and not the error identified in the grounds of application for review. Thus at [62] the primary judge stated: "Under sub-s (3) and sub-s (4) of s 63 the proper officer is required to be satisfied that there is reasonable cause to suspect that the assessment by the medical assessor was incorrect in a material respect but the section does not provide that the function of the review panel is to determine whether the assessment was incorrect in that respect. What sub-s (4) of s 63 provides is that the review panel may confirm the certificate of assessment of the assessor or revoke that certificate and itself issue a new certificate." 60 Subsection 63(4) identifies the power of the review panel by reference to the certificate: it is silent as to the scope of the review. However, the point relied upon by the respondent on the appeal was that if the certificate were to be that of the review panel, the review panel must form an opinion as to whether the degree of permanent impairment was or was not greater than 10% and give reasons for its conclusion: s 61(9). It could neither form the necessary opinion nor give proper reasons, the respondent contended, unless it formed a view as to all matters relevant to the conclusion expressed in the certificate. The respondent also sought support in s 63(5), providing that the certificate would form conclusive evidence as to the matter certified, being, relevantly, whether the degree of permanent impairment was greater than 10%: see s 61(2). 61 Taken in isolation, sub-s 63(1) may provide support for the conclusion reached by the primary judge. The application for which it provides is for referral of "a medical assessment under this Part" to a review panel for review. It might be inferred from that provision, taken alone, that the medical assessment as a whole was to be reviewed. 62 Support may also be provided by the terms of s 63(4). A certificate pursuant to which three medical assessors express a conclusion that the degree of permanent impairment of an injured person is less than or greater than 10% could be thought to be misleading if the assessors had considered only one aspect of the assessment and had formed no view as to other material findings. Indeed, the respondent argued that the certificate could be even more misleading if the assessors had formed a view about other aspects of the assessment but, because of the restricted scope of the review, were not able to give effect to their opinions in those respects in the certificate. 63 However, that characterisation of s 63(4) has an element of circularity. In its terms, it merely confers a power on the review panel allowing it to give effect to whatever conclusion it has reached as a result of the review. To confirm the initial certificate is not necessarily to endorse, whether upon reconsideration or not, each of the material findings of fact of the initial medical assessor. Thus, the review panel may make different findings as to individual injuries but without any variation to the conclusion that the degree of permanent impairment was not more than 10%. There is no reason to suppose that the panel may not, in such circumstances, confirm the certificate of the single medical assessor, although for different reasons. Similarly, if a specific error does result in a variation to the certificate, the certificate must be revoked and a new certificate issued. If the variation resulted from the consideration only of the ground on which the initial assessment was said to be incorrect, the reasons would explain that fact, thereby justifying in unexceptionable terms the basis for the issue of a fresh certificate. Indeed, if the power of the review panel were restricted to the error raised by the application, the panel would exceed its authority in forming views about other aspects of the assessment. The certificate would thus only appear to be misleading to a person who thought that it involved a reassessment of all of the injuries; if a more limited reassessment had been undertaken, in conformity with the Act, no informed recipient of the new certificate would be misled. Nor does sub-s 61(5) take the matter any further: it merely gives to the new certificate the statutory consequences and status that apply to any such certificate. Indeed, given the language of s 61(1), it is strictly otiose. 64 It is arguable that the effect sought by the respondent to be derived from sub-s 63(4) might more plausibly arise from the fact that the process is described as a "review". In some circumstances the term "review" may connote a fresh consideration of a matter, without the need to determine the existence of error, in contrast to the usual meaning of "appeal". This reasoning appears to have been relied upon by McColl JA (with whom Mason P agreed) in Siddik at [70]-[90]. Nevertheless, her Honour accepted the comment of Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 63-64 that the word "review" may be said to have "a quite amorphous meaning", the content of which must be derived from the particular statutory context, referring to remarks to that effect in Tomko v Palasty (No. 2) [2007] NSWCA 369 at [43] and adding the authority of Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 261 (Mason CJ, Brennan and Toohey JJ): Siddik at [68]. Thus, although an appeal by way of review may sometimes invoke a fresh hearing by a body untrammelled by findings made at first instance and entitled to look at material not presented to the first instance tribunal, the term "review" nevertheless indicates that the issues will be limited to those addressed by the first decision: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [30]. The next question is whether any further constraint is imposed in the specific statutory context. 65 Accordingly, it is necessary to consider what inference should be drawn from sub-ss (2) and (3), taken in their statutory context and having regard to their apparent purpose: see Interpretation Act 1987 (NSW), s 33. The application for referral of a medical assessment must be made on grounds "that the assessment was incorrect in a material respect": sub-s (2). When the question of referral is considered by the proper officer, he or she must first be satisfied at the prescribed level that the assessment "was incorrect in a material respect having regard to the particulars set out in the application": sub-s (3). Having formed the relevant opinion, what is then referred to the review panel is the application. No doubt the review panel will have the assessor's certificate and reasons before it, but it is the application, being the document which has been referred to it, which identifies the error required to be considered and hence the subject-matter of the review. 66 If the medical assessment were at large before the review panel, there would be a limited purpose in referring the application to it. By contrast, the provision for referral of the application indicates a clear purpose, namely to notify the review panel of the extent of the dispute which it is being asked to resolve. To effect that purpose, the review panel should be understood to be restricted to considering the errors identified in the application. 67 If it had been intended that a party was entitled to a fresh consideration of all matters presented to the initial medical assessor, one would have expected the legislature to say so. To require as a sole precondition of review that there be grounds that the assessment was incorrect in a material respect is inconsistent with that approach, unless it can be said that the precondition is merely a matter for the proper officer of the Authority, and not a matter to be addressed by the review panel. However, the structure of s 63 does not readily allow such an inference for four reasons. First, the natural role for a "gatekeeper", who is not required to determine the outcome of an application, is to avoid waste of resources, including the time of medical assessors and the concomitant expense which would result from the need to consider appeals which appeared to be frivolous or without substance. If error is irrelevant to the outcome of the appeal (because it is a fresh consideration of all issues), the need to demonstrate to the proper officer that there is at least "reasonable cause to suspect" error (or more precisely that the assessment was "incorrect") involves a degree of incongruity with the hypothesised scope of the review. 68 Secondly, not only must the application identify material respects in which the assessment was incorrect, but it must, at least by inference, set out "the particulars" in respect of which that claim is made. That conclusion follows from the fact that the proper officer is to have regard to such particulars: sub-s (3). Thirdly, the matters particularised are required to be "material", which should be understood to mean, in the context, that if made good they will result in a variation to the certificate. Fourthly, as already noted, it is the application for review which is to be referred to the review panel. It is that application which contains grounds on which the assessment below was said to be incorrect and particulars of the respects in which error is alleged. Moreover, those incorrect aspects are required to be material in the sense just mentioned. 69 These factors, taken together, reveal a coherent statutory purpose and structure. Part 3.4 of the MAC Act is designed to provide a non-curial process for resolving medical disputes. The scope of the dispute is identified as (relevantly for present purposes) a "disagreement between a claimant and an insurer" in relation to any of the matters identified in s 58(1). That disagreement is referred to a medical assessor and, unless the assessment is sought to be reviewed, is resolved by the assessment. The purpose of a review is to resolve any outstanding element of disagreement, as identified by the claimant or the insured. Neither the Authority nor a review panel (nor any other body) has a right to apply for a review: s 63(1). It follows that no one other than a party to a medical dispute is able to define the scope of any on-going disagreement. The Part thereby permits a narrowing of the issues involved in a medical dispute and provides for the economic and efficient use of resources required to resolve matters in dispute. On that approach, the language of s 63 is consistent with the appellant's submission, namely that the statutory function of the review panel is to determine whether a medical assessment was indeed incorrect in the particular respects identified by the applicant for review. 70 Because there were seen to be alternative readings of s 63 available, the Court was taken to extrinsic material, being the explanatory note to the Motor Accidents Compensation Bill 1999, which first contained Part 3.4, and the Minister's second reading speech with respect to the Bill: Parliamentary Debates (NSW), Legislative Council, 3 June 1999 at 901ff. Reference to such material is no doubt permissible pursuant to s 34 of the Interpretation Act, but, as the respondent conceded, it provided little by way of assistance. 71 On the other hand, the respondent contended that assistance could be obtained from the objects of the MAC Act and, to the extent that a particular construction would promote the objects, that construction should be preferred to one which did not, pursuant to s 6: cf Interpretation Act, s 33. The objects of the Act are set out in s 5(1). (Section 5(2) contains a number of "acknowledgments", which were not relied upon and the precise purpose of which is obscure.) 72 Relevantly, s 5(1) provides: " 5 Objects of Act (1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, … (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities …" 73 For what it is worth, one of the matters which "must be acknowledged in the application and administration of this Act", as identified in s 5(2), is: "(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries …." 74 Even without reference to the objects, two important legislative purposes may be divined from the provisions of the MAC Act. One is that damages for non-economic loss are unavailable in respect of injuries which do not involve the specified degree of permanent impairment: s 131. Secondly, in assessing degrees of permanent impairment, a form of non-curial dispute resolution has been adopted with respect to disputes involving matters which are capable of resolution by medical assessors: see particularly s 58 and, generally, Part 3.4. 75 It may readily be accepted, both from the objects and the specific provisions, that disputes were to be resolved, not manufactured; that a cheaper mechanism for resolution was to be preferred to a more expensive one and that an expeditious resolution was to be preferred to one involving complexity or delay. 76 To these factors may be added reference to s 64 of the MAC Act which imposes the costs of medical assessments under Part 3.4 on the insurer: s 64(1). The costs include the remuneration of medical assessors, expenses incurred by the injured person and by a parent or other carer who accompanies the injured person in attending a medical assessor: s 64(3). As the section makes explicit, it is intended to cover the costs both of an initial medical assessment and of the review of medical assessments: s 64(4). 77 Despite the reliance by the respondent on the objects of the Act, it would seem that a construction of s 63 which limited reviews to questions actually raised by the parties and therefore to the resolution of actual disputes should be preferred to an alternative which allowed a review of a medical assessment in respect of injuries about which no ground involving incorrectness had been raised. Similarly, a review which was limited to discrete injuries involving specific medical specialities might be seen to be briefer, more expeditiously resolvable and less demanding of the parties than one which imposed on the parties and the review panel an obligation to review every aspect of what might be quite complex injuries and impairments, even though neither party, and particularly not the party which had an interest in expanding the review, but which would bear the additional costs, had sought it. 78 Unlike other statutory provisions, the review required in the present case, identifiable by reference to specified aspects of assessment said to be incorrect, invites a more restricted construction than the term "review" taken in the abstract might otherwise attract. A related issue arose as to the jurisdiction of the Racing Appeals Tribunal considered in NSW Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; 56 NSWLR 691. An appeal to the Tribunal was limited by a regulation to the grounds identified by the applicant, unless extended by leave of the Tribunal, but implicitly at the request of the applicant. The Court held that for the Tribunal to go beyond correction of an error so identified by the applicant would be for it to exceed its statutory jurisdiction: at [11]-[13] (Handley JA, Santow JA agreeing). 79 A question then arises whether that approach is inconsistent with the approach adopted in relation to the Workplace Injury Act by this Court in Siddik. Siddik was concerned with a comparable scheme of internal review in relation to claims for compensation under the Workers Compensation Act 1987 (NSW). In common with the MAC Act, the Workplace Injury Act has a scheme for resolution of medical disputes (as defined in s 319) by an approved medical specialist. The specialist is required to give a certificate as to matters referred for assessment (s 325) and the certificate is "conclusively presumed to be correct" in relation to particular issues identified in s 326. An appeal is provided against a matter so certified if it is a matter which is conclusively presumed to be correct. The appeal is limited to specified categories of grounds set out in s 327. 80 Siddik involved an appeal lodged by the WorkCover Authority (which was responsible for paying compensation to Mr Siddik as an employee of an uninsured employer) identifying two grounds, the second of which alleged that the assessment was made on the basis of "incorrect criteria" and that the certificate contained "demonstrable error", being grounds of appeal available under s 327(3)(c) and (d) respectively. Particulars of the grounds were provided, although the particulars were not narrow, being summarised by McColl JA at [21] as follows: "[The WorkCover Authority] asserted that it was unclear from the [certificate] whether [the medical specialist] had taken into account specialist and medical reports, and various other documents which formed part of its Application to Resolve a Dispute and other documents it had lodged with the Worker's Compensation Commission under cover of a letter dated 15 February 2005. It asserted that if there had been a failure to take all the evidence into account, there must be a new assessment. This appears to have constituted its demonstrable error ground, although it also asserted that if the assessment was made without regard to this material it was made on the basis of incorrect criteria." 81 The ground related to an assessment of 5% impairment with respect to an injury of the neck. The appeal panel rejected the specific complaint about failure to take account of various reports but found that the finding made by the medical specialist, pursuant to the relevant guidelines, did not entail a 5% impairment. 82 The Court held that, although it was open to consider a matter not specifically identified in the notice of appeal, the appeal panel was required to notify the parties of its intention to deal with the additional issue and give the parties an opportunity to respond. Because the appeal panel failed to take that step, its decision was set aside: at [104] (McColl JA, Mason P agreeing). Giles JA adopted similar reasoning at [9]-[12]. 83 How the reasoning in Siddik should apply in relation to the MAC Act was not the subject of detailed submissions in this Court. That was no doubt understandable, because, although the reasoning may have supported the approach adopted by the respondent, before the primary judge the respondent had been anxious to distinguish the scheme under the Workplace Injury Act because of observations less supportive of its position made in Campbelltown City Council v Vegan at [131] and [137]. It had succeeded in that endeavour. Given that history, it might have seemed opportunistic for the respondent to place weight upon the conclusions reached in Siddik. Nevertheless, it is important that this Court adopt coherent readings of similar legislation and it is therefore necessary to address the approach adopted in Siddik. 84 To carry out this exercise, it is necessary to identify with some precision the issue which arose in Siddik and also specific aspects of the statutory scheme under the Workplace Injury Act. With respect to the issue, although the appellant in Siddik alleged error on the part of the appeal panel "in conducting a full review" after rejecting the errors identified in the notice of appeal (see [32] in Siddik), the concept of a "full review" must be understood in its factual context. Although the claimant had suffered a number of injuries, the subject-matter of the appeal was the assessment of the injury to his neck. The appeal panel did not, it would appear, embark upon any review of the other impairments identified in the certificate, being injuries to his right foot and his left knee. In other words, the review was restricted to consideration of the injury identified in the notice of appeal. 85 Secondly, the notice of appeal identified an error involving the application "of incorrect criteria" being a statutory ground identified in s 327(3). The appeal panel also identified an error involving that ground. Thus, the only aspect of the appeal which went beyond that identified by the appellant was the precise particular in respect of which error was said to have arisen. Furthermore, the scope of the inquiry undertaken by the appeal panel in reaching its finding of error appears not to have extended beyond that which was required to deal with the error particularised. In order to determine whether the medical specialist had failed to take account of some of the material before him, it would have been necessary for the appeal panel to consider both the terms of his findings (which referred to the criteria he had identified as relevant) as well as the material before him, so as to consider whether the findings were in conformity with the expert evidence. 86 In relation to the respective schemes, there are numerous differences in the statutory language, which suggest that the approach with respect to the Workplace Injury Act does not necessarily apply in relation to the MAC Act, but which may involve no clear point of distinction. For example, s 327 of the Workplace Injury Act provides for an appeal which is described as an "appeal … by way of review" in s 328(2). Under the MAC Act, s 63 provides for an application "for review". Of greater importance is the requirement under the MAC Act that the application identify a respect in which the medical assessment was "incorrect": s 63(2). That Act separately provides for a further medical assessment in circumstances where there has been a deterioration of the injury: s 62(1). By contrast, the Workplace Injury Act identifies "deterioration of the worker's condition" as a ground of appeal: s 327(3)(a). It also provides that the appeal panel may hear additional evidence in certain circumstances: s 328(3). This was treated as significant in respect of the jurisdiction conferred on the appeal panel which, as noted by McColl JA at [96], was "not only an error-based jurisdiction". (See also Giles JA at [9].) 87 Turning to the reasoning of the Court, the fact that the statutory tribunal was constituted by experts was identified as a significant factor in Siddik. Thus, McColl JA stated: "[98] Further, while the express limitations on opening the gate to an appeal are suggestive of an appeal limited to the grounds identified by the appellant, there is much to be said for the view that when used in the context of the review of [a certificate] by a panel including two specialists, … they should be entitled to determine 'the true and correct view': Chemler (at [30]). The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise: Kalil v Bray [1977] 1 NSWLR 256 (at 262) per Street CJ (Moffitt P and Glass JA agreeing)." 88 The reference to the remarks of the Chief Justice in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [30] must be understood in context. Spigelman CJ was dealing with the powers of a presidential member carrying out a review of the decision of an arbitrator on the merits, pursuant to s 352 of the Workplace Injury Act. The question did not involve the scope of the review, but whether, having identified error, the Deputy President should have remitted the matter to the arbitrator, rather than making a finding himself upon the issue under consideration. The case did not concern an appeal panel, nor review by a specialist. The second authority, Kalil v Bray, was concerned with the propriety of an expert tribunal drawing upon its own specialist knowledge and experience. However, Street CJ did not suggest that such a tribunal had some general mandate "to resolve questions within its expertise"; rather, his Honour noted that it was entitled "to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it": at 262. With respect, the fact that a tribunal is comprised of specialists does not assist in determining whether it was given some power of roving inquiry to determine the truth of a matter, or whether its statutory remit was limited to the resolution of an issue in dispute, as identified by a party to the dispute. 89 Two matters of practical significance arise from a consideration of Siddik. A conclusion that the powers of the review panel established under the MAC Act are limited to the respects in which the applicant has identified that the assessment was incorrect may be limited in its practical operation, both with respect to the nature of the error identified and with respect to the subject matter of the assessment. In relation to the error, although identified by way of particulars, it may have a broad consequence for the scope of the review. For example, where a medical specialist has certified whether an injury has stabilised (pursuant to s 58(1)(c)), the error may be particularised as failure to take account of the most recent report of the treating doctor. Assuming the omission is made good, the review panel will need to take that report into account, together with the earlier material, in order to decide whether the assessment was incorrect. In undertaking that task, the review panel will not be bound by inferences drawn from the earlier material by the medical specialist. 90 Similarly, where the subject matter of the application for review is a particular injury, the medical assessment of which is not severable from the assessment of a related injury, the review panel will not be restricted from considering the assessment of the other injury. However, as a practical matter, it is clear that the permanent impairment Guidelines define with a high degree of independence the injuries which must be separately assessed and the consequences, sometimes by reference to a specific percentage and sometimes by reference to a range, which must be applied in respect of each independent injury. Finally, the permanent impairment Guidelines require that the relevant level of whole person impairment be calculated by an arithmetical exercise with respect to the component parts. 91 No doubt there will be a need in particular cases to make an evaluative judgment as to whether and to what extent the scope of a particular review is restricted by the terms of the application: it is likely that, in such a case, the review panel would be entitled to make its own judgment, so long as it understood the principle by which its jurisdiction was limited: see Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7, 59 CLR 369 at 377 and 391-2. However, no such issue arose in the present case. It was clear beyond doubt that the respect in which the assessment was said to be incorrect was limited to the assessment of the impairment resulting from the splenectomy. There was no suggestion that a consideration of that issue involved reconsideration of the degree of impairment of the appellant's left knee. In relation to the impairment of the left knee, any dispute between the parties had been resolved by the initial medical assessment. Neither party sought to challenge that assessment. In reconsidering the assessment in that respect, the review panel was not resolving a dispute between the parties but embarking on an exercise of its own, which was beyond its statutory jurisdiction. It was in error and its decision should have been set aside. In failing to take that step, the primary judge was in error. Operation of procedural Guidelines 92 Before leaving this issue, two further matters should be noted, which were raised in the course of argument. First, it was not contended that the respondent lacked an opportunity to put in issue the assessment in respect of the degree of impairment resulting from the injury to the left knee. Even if, the overall assessment being favourable to it, it had not sought to initiate an application for review, it had the opportunity to raise the issue by way of reply, once notified of the application by the appellant. Given that correction of the error identified by the appellant was clearly likely to lead to an assessment of impairment greater than 10%, the respondent was on notice that it was at risk if other aspects of the assessment were not reduced. The procedures with respect to reviews of medical assessment are set out in procedural Guidelines issued pursuant to s 44(1)(d) of the MAC Act. It would appear that cl 10.4 would be broad enough to have permitted the respondent to lodge its own application with, if necessary, an extension of the period specified for such applications. 93 Secondly, the respondent drew attention to cl 10.17 of the same guidelines which, by virtue of s 65(1), imposed binding obligations on the review panel. Clause 10.17 relevantly provided: "10.17 The review panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 10.17.1 consider afresh all aspects of the assessment under review …." 94 The respondent contended that this provision had two aspects to it. The term "afresh" indicated that the reconsideration was at large, with respect to the material to which reference could be made by the review panel. Secondly, the fact that consideration was to be given to "all aspects of the assessment" was said to demonstrate an obligation to consider all aspects of the assessment, and not merely those issues raised in the application for review. 95 There are three reasons why this guideline provides no assistance to the respondent. The first is the general proposition that a guideline issued under the MAC Act, although it may have effect as delegated legislation (see s 44(7)), cannot provide a basis for construing a provision of the Act so as to confer a broader jurisdiction on the review panel than that conferred by the Act, absent express statutory power to that effect. The second reason why the procedural Guidelines provides no assistance is that it is at best neutral in the relevant respect. It requires the review panel to "consider afresh" the matters which it must consider and in that sense conveys the intention that there should be a fresh hearing. However, it is ambiguous as to the whether the words "under review" simply qualify the words "the assessment" or, the clause being read as a whole, qualify the words "all aspects of the assessment" so as to be neutral as to which aspects are in fact under review. If thought to be ambiguous, the latter construction should be adopted as being consistent with the Act. The third reason is, pursuant to s 44(1)(d) of the MAC Act, the Authority is empowered to issue guidelines with respect to "the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment, under Part 3.4". A guideline which purported to affect the scope of the assessment, as provided for in the Act, would be invalid. Other matters 96 Because the appellant is entitled to succeed on his primary submission, there is no need to resolve his alternative argument based on the existence of a power, but no obligation, on the part of the review panel to assess aspects of the medical assessment not put in issue by the applicant. 97 Whether cl 10.17 of the procedural Guidelines could properly impose an obligation on the review panel in circumstances where the statute left the matter as a question of discretionary power need not be addressed. Nor is it necessary to consider whether, if the review panel did possess a power to reconsider aspects of the assessment not dealt with in the application for review, the panel erred in treating the further consideration as a matter of obligation, rather than a matter requiring the exercise of discretion. Nevertheless, there is substance in the appellant's contention that the panel treated the matter as one requiring consideration of "[t]he degree of whole person impairment", as noted in section 2B of the panel's reasons, a document which the appellant is entitled to rely upon as forming part of the record for the purpose of demonstrating error of law on the face of the record: Supreme Court Act, s 69(4). 98 Because the review panel did not limit its consideration to the error identified in the application for review, but reassessed a separate injury suffered by the appellant, it exceeded its jurisdiction and the primary judge should properly have so concluded and set aside its decision. Accordingly, I would propose the following orders:

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