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Texts Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, reissued on 4 March 2021)

Category: Principal judgment

Parties: Karen Rogers (Plaintiff)
Health Services Union NSW (First Defendant)
Appeal Panel constituted pursuant to s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Second Defendant)
President of the Personal Injury Commission of New South Wales (Third Defendant)

Representation: Counsel:
Mr S McMahon (Plaintiff)
Mr P Perry (First Defendant)
Solicitors:
Bartley Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)
Crown Solicitor's Office (Second Defendant) (submitting appearance)
Crown Solicitor's Office (Third Defendant) (submitting appearance)

File Number(s): 2025/00404967

Publication restriction: Nil.

JUDGMENT

1. The plaintiff, Karen Rogers, suffered a psychological injury in the course of her employment as a union organiser with the first defendant, the Health Services Union NSW (“the HSU”). On 7 March 2023, she made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW). The HSU disputes that Ms Rogers is eligible for a lump sum claim.

2. Since this dispute first arose in 2023, it has been considered by two different Appeal Panels constituted pursuant to s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”). The decision of the first Appeal Panel was quashed in this Court in 2025: Rogers v Health Services Union NSW [2025] NSWSC 291.

3. Ms Rogers now seeks judicial review of the decision of the second Appeal Panel to consider her dispute. She invokes this Court’s supervisory jurisdiction, regulated by s 69 of the Supreme Court Act 1970 (NSW) and seeks relief in the nature of certiorari to quash the decision made. She also seeks an order confirming the medical assessment certificate issued by the medical assessor or, in the alternative, an order remitting the matter to the Personal Injury Commission for referral to a differently comprised Appeal Panel.

4. The HSU is the only active defendant in these proceedings; the second and third defendants have filed submitting appearances.

5. The HSU does not dispute that Ms Rogers suffered psychological injury as a result of bullying and harassment whilst in the employ of the HSU and that this caused permanent impairment; she has been receiving weekly benefits under the Workers Compensation Act together with treatment and other medical expenses since her deemed date of injury, which is 13 July 2015 (pursuant to ss 4(b)(i) and 15 of the Workers Compensation Act). The dispute between the parties instead turns on the degree of her impairment; specifically, whether her functional impairment in the category of “travel” should be assessed as Class 2 (mild impairment) or Class 3 (moderate impairment) under the applicable Workers Compensation Guidelines. For reasons that will emerge below, if the proper assessment of her “travel” impairment is Class 2, then Ms Rogers’ whole person impairment (or WPI) is 7% but if it is assessed as Class 3 then her WPI is 15%, which is the minimum WPI to qualify for a lump sum payment.

6. Given the history of this matter, it is necessary, in order to understand the complaint made in this Court, to set out in some detail not only the relevant legislative scheme, but also the results of Ms Rogers’ three medical examinations, the findings of both Appeal Panels and the previous decision of this Court.

The Legislative Scheme

7. Part 3, Division 4 of the Workers Compensation Act provides for awards of compensation for non-economic loss as a result of workplace injury.

8. Section 66 provides that a worker who receives an injury resulting in a degree of permanent impairment greater than 10% is entitled to receive “permanent impairment compensation”. However, s 65A sets out special provisions for psychological and psychiatric injury. Section 65A(3) provides as follows:

(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%. (Emphasis added.)

9. As the relevant time, s 65 provided that the degree of permanent impairment resulting from an injury is to be assessed as provided by Part 7 of Chapter 7 of the 1998 Act. This Part provides for medical assessment, including the assessment of the degree of whole person impairment, by a medical assessor and, by way of review, appeal panels. The scheme was designed to take the function of assessment of injury out of the adversarial court system: see Inghams Enterprises Pty Ltd v Lokovska [2014] NSWCA 194 at [1] (Basten JA) (“Inghams”).

10. Medical assessors (formerly known as approved medical specialists) are appointed under s 321 of the 1998 Act to deal with medical disputes, which are defined in s 319 to mean:

a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—

…

(c) the degree of permanent impairment of the worker as a result of an injury,

…

11. At the relevant time, the assessment by a medical assessor appointed under s 321 was to be undertaken in accordance with s 322. Section 322(1) relevantly provided:

(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.

12. The guidelines that were in force at the time the assessment the subject of this dispute was made were the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, reissued on 4 March 2021) (“the Guidelines”). The Guidelines are issued in accordance with s 376 of the 1998 Act.

13. The Guidelines are divided into chapters, each of which is addressed to different bodily systems or bodily parts. Chapter 1 provides a general introduction to the assessment of permanent injury and is applicable to the chapters which follow.

14. Clause 1.6 provides:

a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:

…

• the degree of permanent impairment that results from the injury

…

b. Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.

15. Further, clause 1.48 provides:

As the Guidelines are to be used to assess permanent impairment, the report of the evaluation should provide a rationale consistent with the methodology and content of the Guidelines. It should include a comparison of the key findings of the evaluation with the impairment criteria in the Guidelines.

16. Clause 1.11 makes it clear that where the relevant disorders are categorised as psychiatric or psychological disorders, as Ms Rogers’ diagnosis was, then any permanent impairment is to be determined in accordance with Chapter 11 of the Guidelines. Clause 11.1 states that the evaluation of psychiatric impairment requires a medical examination.

17. Further, clause 11.6 provides:

It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI).

18. Chapter 11 dictates that the assessment must be based on the Psychiatric Impairment Rating Scale (“PIRS”). This requires the assessor to address the behavioural consequences of a psychiatric disorder by reference to six items, each of which evaluates an area of functional impairment. Those areas of functional impairment are:

19. Self care and personal hygiene (Table 11.1)

20. Social and recreational activities (Table 11.2)

21. Travel (Table 11.3)

22. Social functioning (relationships) (Table 11.4)

23. Concentration, persistence and pace (Table 11.5)

24. Employability (Table 11.6)

25. The assessor must assign one of five classes to each category, being no deficit (Class 1), mild impairment (Class 2), moderate impairment (Class 3), severe impairment (Class 4) and totally impaired (Class 5). Each class in the six categories has indicia attached, called “descriptors”. Clause 11.12 relevantly provides:

Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms. (Emphasis added.)

20. The relevant category for the purpose of this dispute is “travel”. Table 11.3 provides descriptors for each class:

Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.

Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.

Class 4: Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.

Class 5: Totally impaired: may require two or more persons to supervise when travelling.

(Emphasis added.)

21. Once a class of impairment has been decided the class is translated into a score of points through the formula set out from clause 11.13.

22. Appeals against medical assessments are then governed by ss 327 and 328 of the 1998 Act. Section 327(3) relevantly reads:

(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.

(Emphasis added.)

23. Section 328 provides for the following relevant procedures on appeal:

(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

…

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

24. It is in the context of that legislative scheme, that I now turn to recount the history of Ms Rogers’ claim.

Expert and other evidence of Ms Rogers’ incapacity to travel

25. On 9 May 2017 Dr Lucas Murphy, psychiatrist, provided a medico-legal report for the insurer. He diagnosed Ms Rogers with an adjustment order with anxiety as a result of her employment with the HSU. His report did not provide any history about Ms Rogers’ ability to travel.

26. From 2 March 2017 until 9 January 2023 Dr Paul Burford issued 14 WorkCover NSW certificates of capacity. No restriction in relation to Ms Rogers’ driving ability were listed.

27. On 18 November 2020, an occupational psychologist, Graham Hiscox, issued a Vocational Assessment Report in which he noted this history from Ms Rogers: “Ms Rogers advised that she relies on private vehicle for travel and that she has no difficulty with driving”.

28. On 17 December 2020, 18 August 2021 and 23 March 2022, Mr Hiscox reported to Dr Burford about a vocational assessment undertaken by him on behalf of the Injury Management and Assessment Centre. There was no reference to travel restrictions.

29. On 1 December 2021 Dr Burford recorded in his clinical notes that he completed an RTA driving medical for Ms Rogers’ drivers licence. One of the questions was “does the patient have mental issues that may impact on safe driving?” to which Dr Burford answered “no”.

30. It is against that background that Ms Rogers obtained a report in support of her application for a lump sum payment.

First medical assessment: Dr Snowdon

31. Ms Rogers relied on the report of Dr Peter Snowdon who assessed her on 22 February 2023. He provided a report dated 1 March 2023. I will confine the extracts of that report to his findings relevant to his rating of Ms Rogers’ travel impairment.

32. Ms Rogers reported that she saw a hairdresser by:

… weekly driving herself down to the salon of a long term friend, approximately a kilometre away from the house.

She said that this friend very much encourages her to get out and maximise her functioning.

33. Ms Rogers also reported becoming “increasingly anxious” about being required to attend an office in Newcastle for training as part of her employment at GIO. Dr Snowdon recorded the following history:

Ms Rogers had then mentioned that she has, however, been becoming increasingly anxious since two weeks ago, when she was advised that, together with some from the office in Argyle Street, Newcastle, and eight members of her Network Team, she will be required to attend that office for a day of joint instruction.

She said that, in response, however, to her reporting her anxiety at this meeting, Mr Collinson had volunteered to meet her in the carpark, and return her there, to then travel home.

In this regard, Ms Rogers had reported a continued fear of re-exposure to members of the Union, reporting an incident a month before Christmas 2022, in which, when looking in a post office window, she turned and came face to face with one of the men in her office, Mr Patrick Craven, and subsequently collapsed.

34. Dr Snowdon diagnosed Ms Rogers with an adjustment disorder with mixed anxiety and depressed mood, agoraphobia with panic and persistent depressive disorder.

35. When applying the rating scale in the Guidelines, Dr Snowdon assessed travel as Class 1. The reason given was:

Ms Rogers said that she is very able to drive alone, to anywhere she wants, saying that, in her car, possibly because of how much driving she had done in association with her work with the Health Services Union, she feels “at ease” when doing so.

Accordingly, she scores Class 1 for this area. (Emphasis in original.)

36. Dr Snowdon assessed four other PIRS categories as Class 3 and one as Class 2. Accordingly, Ms Rogers was assessed as having a whole person impairment of 15%.

37. As provided by s 65A(3) of the Workers Compensation Act, this WPI assessment would have entitled Ms Rogers to lump sum compensation.

Ms Rogers’ statement in support of the application

38. Ms Rogers provided a statement dated 2 July 2023 in which she stated at [8] that she struggles to leave the house most days. If she has appointments, she goes to them but finds it difficult to do so. At [13], she stated:

I can travel away from my own residence without a support person but this is rare. This is usually only to go to appointments because otherwise, my anxiety can sometimes be debilitating.

Second medical report: Assessment of Dr Malik

39. The HSU disputed Dr Snowdon’s assessment of 15% WPI, declined Ms Rogers’ claim and referred her to a different psychiatrist, Dr Nabil Malik, for his expert opinion.

40. Dr Malik assessed Ms Rogers on 25 October 2023 and provided a report dated 20 November 2023.

41. Dr Malik diagnosed Ms Rogers with major depressive disorder with anxious distress.

42. Dr Malik placed Ms Rogers in Class 2 for travel. The noted reason was:

Able to drive, when she is in the car, she feels safe as doors are locked, can travel without support person to familiar places but on [sic] unfamiliar places she gets anxious.

43. While this was a higher class of impairment for travel than that assigned by Dr Snowdon, Dr Malik assessed four of the other PIRS categories as Class 2 and only one was assessed as Class 3. Dr Malik also deducted one-tenth on account of a pre-existing condition pursuant to s 323 of the 1998 Act.

44. Dr Malik’s final assessment of whole person impairment was 6%; an assessment which fell below the threshold entitling Ms Rogers to lump sum compensation.

The third medical examination: The medical assessment certificate (MAC)

45. On 7 February 2024, Ms Rogers commenced proceedings in the Personal Injury Commission (“the Commission”) to resolve the dispute as to her WPI. The difference between the respective assessments of Dr Snowdon and Dr Malik amounted to a medical dispute as defined in s 319(c) of the 1998 Act. Accordingly, the Registrar of the Commission referred the dispute to a medical assessor pursuant to s 322.

46. The appointed medical assessor was Dr Wayne Mason, a psychiatrist. He examined Ms Rogers on 12 March 2024 and issued a medical assessment certificate (“MAC”) on 14 March 2024. This was over a year since Ms Rogers was examined by Dr Snowdon and nearly five months after Dr Malik’s examination.

47. Dr Mason set out Ms Rogers’ history of bullying and abuse in the workplace and its impact on her as follows:

Ms Rogers said this all took a toll on her and it got to the point where she could not face going to work and did not want to get out of bed. She said her work involved a lot of long distance driving and she was frequently taking abusive phone calls while doing so. She said she was crying at the drop of a hat and was very frightened at the thought of attending meetings. She said she became depressed and occasionally thought she would be better off if she was dead and did not have any real thoughts of suicide.

48. Dr Mason then addressed the long-term consequences of this abuse:

The long term consequence has been that Ms Rogers is afraid to leave her home. She said she does not go anywhere unless she is accompanied because of anxiety. She said an exception to this was to attend medical appointments or the local shops on rare occasions. She said she does not leave the house to visit her children or grandchildren and relies on them to visit her. She said a girlfriend who was a hairdresser did insist on taking her to have her hair cut at her salon once a week; this has stopped because her friend is caring for a sick relative. She subsequently does not have her hair done. Ms Rogers said she experiences stress with a lot of neck tension and migraine. She feels safe and only if she is locked in her house. She said her partner does the shopping and she feels anxious whenever she has to leave the house even when accompanied. She said her daughter will take her to the shops but they have to park close to an entry so she can escape from the shopping centre if necessary. (Emphasis added.)

49. Dr Mason noted that Ms Rogers obtained a position as a part-time GIO consultant and worked from home for 30 hours a week. However, a negative component of this job related to travel:

The other negative component of the job is the requirement to attend monthly training in Newcastle. She said she is able to manage this only because her manager is supportive and will escort her to and from the car park.

50. Dr Mason recorded Ms Rogers’ present symptoms as follows:

Ms Rogers said she continues to lock herself away inside her home. She does not go anywhere alone except to her doctor. She remains anxious and tense.

51. Dr Mason opined that Ms Rogers met the diagnostic criteria for panic disorder and agoraphobia:

Ms Rogers reported being abused, bullied and denigrated in the workplace over a period of approximately 2 years. As a consequence, she was totally demoralised and developed severe anxiety symptoms resulting in the conditions panic disorder and agoraphobia.

… She also meets DSM-5 criteria for agoraphobia because she is unable to use public transportation, be in enclosed spaces, stand in a queue, be in a crowd and be outside the home alone. She worries that escape might be difficult. The feared situations always provokes anxiety and they are actively avoided. The anxiety is out of proportion to the actual danger. It has lasted more than 6 months and has caused significant impairment.

52. Dr Mason assessed the category of travel as Class 3. He provided the following reason:

Ms Rogers said she is able to drive locally and travels to see her GP every month. She is not able to use any form of public transport because of anxiety. She said is unable to use air transport for a similar reason. She does not feel safe to leave her home without a support person. She is moderately impaired. (Emphasis added.)

53. Dr Mason assessed the remaining PIRS categories as follows:

54. Self care and personal hygiene – Class 2;

55. Social and recreational activities – Class 3;

56. Social functioning – Class 2;

57. Concentration, persistence and pace – Class 2; and

58. Employability – Class 3.

59. The MAC issued by Dr Mason accordingly assessed Ms Rogers’ degree of whole person impairment at 15%. Again, this would have entitled Mr Rogers to a lump sum payment, but the HSU disputed this assessment.

First decision of the Appeal Panel

55. On 11 April 2024, the HSU appealed the MAC pursuant to s 327 of the 1998 Act on the basis that Dr Mason had incorrectly assessed Ms Rogers as Class 3 as opposed to Class 2 for the category of travel.

56. The HSU relied on the reports of Dr Malik and Dr Snowdon and Ms Rogers’ signed statement dated 2 July 2023, all extracted above.

57. On 8 May 2024, the matter was referred to an Appeal Panel constituted by Member Elizabeth Beilby, Dr Douglas Andrews and Dr Michael Hong.

58. On 16 August 2024, the Appeal Panel set aside Dr Mason’s certificate. It issued a new certificate on this date which assessed Ms Rogers’ whole person impairment at 7%.

59. In its reasons, the Appeal Panel first noted that the ambit of the dispute was narrow, and the grounds of appeal were limited to the assessment of Class 3 moderate impairment for the PIRS category of travel.

60. The Appeal Panel noted that it had conducted a preliminary review and determined that it was not necessary for Ms Rogers to undergo a further medical examination.

61. The Appeal Panel found that a Class 3 classification was “glaringly improbable” for the following reasons:

The Appeal Panel has considered all the submissions made by both the appellant and respondent. What is apparent after considering the evidence is that the respondent has the capacity to travel without a support person. This is illustrated in the fact that she is able to attend the Newcastle office for work, be it only once per month, on the condition that she is walked back to the carpark, presumably to drive herself home. This is also consistent with the histories given to Dr Malik and Dr Snowden who both took histories that the respondent was able to drive independently. Such a factual matrix makes a Class 3 classification ‘glaringly improbable’.

It should be observed that there is no evidence that there has been a change in the respondent’s psychological condition so that the histories taken by both Drs Snowden and Malik should be given little weight.

Whilst the respondent told the Medical Assessor that she did not feel safe to leave her home without a support person, the fact remains that she is capable to do so and in fact does do so. This is incompatible with a Class 3 assessment.

The fact that the respondent finds public and air transport unusable due to her anxiety would take her out of a Class 1 rating as the general population is able to use those modes of travel. The Appeal Panel therefore assesses the respondent has a having a class 2 impairment in relation to travel.

The ratings in ascending order are 222 233, median 2, final WPI is 7%.

(Emphasis added.)

62. By way of aside, I note that although it seems curious that simply reclassifying travel as Class 2 instead of Class 3 has the effect of reducing the WPI from 15% down to 7%, that is the result of the formula prescribed by the Guidelines. The “median class score” determines the applicable percentage range of impairment. With a Class 3 travel classification, Ms Rogers’ median class score was rounded up to 3, for which the applicable range of impairment is 11-30%. Ms Rogers’ aggregate score of 15 then places her at 15% impairment (Table 11.7). However, with a Class 2 travel classification, Ms Rogers’ median class score becomes 2. The applicable range of impairment is lowered to 4-10% and her aggregate score of 14 places her at 7% whole person impairment.

The first judicial review proceedings

63. On 6 November 2024, Ms Rogers commenced proceedings in this Court for judicial review of the Appeal Panel’s decision. She contended that the Appeal Panel’s decision should be set aside based on the following errors (at [15]):

64. The Appeal Panel made an error of law in “misapplying the test as to whether there was error on the part of the Medical Assessor (MA)”.

65. The Appeal Panel “failed to exercise jurisdiction when it failed to consider relevant evidence before it”.

66. The Appeal Panel substituted a different opinion “without identifying a real error or without conducting its own clinical assessment or examination of the plaintiff”.

67. The Appeal Panel failed to apply the appropriate principles in finding the medical assessor’s Class 3 classification for travel was “glaringly improbable”.

68. The Appeal Panel did not give adequate reasons for deciding that the plaintiff’s travel habits were “incompatible with a Class 3 assessment”.

69. The Appeal Panel did not give proper reasons for finding that “the plaintiff suffered a Class 2 impairment as concerns travel pursuant to the Psychiatric Impairment Rating Scale (PIRS)”.

70. On 31 March 2025, Elkaim AJ set aside the Appeal Panel’s MAC and remitted the matter to the Commission to be referred to a differently constituted Appeal Panel.

71. Contrary to the Appeal Panel’s view that Ms Rogers’ psychological condition had not changed, Elkaim AJ found that the histories provided to the three doctors did evidence some deterioration in Ms Rogers’ condition (at [26]-[30]):

[26] In order to assess whether there had been deterioration, I think it important to look beyond the simple reasons that each doctor gave for their respective classifications. Dr Snowdon’s description in respect of travel bespeaks very little disability and even refers to the plaintiff being “at ease” when travelling.

[27] Dr Malik examined and assessed the plaintiff about eight months later. By this time, the description in relation to travel is significantly different. The plaintiff now only feels safe because the car doors are locked; she can only travel to familiar places without a support person; and she suffers anxiety when going to unfamiliar places. In my view there is a very clear deterioration by the time the plaintiff sees Dr Malik. This is confirmed by Dr Malik now placing the plaintiff, for travel, within Class 2 whereas Dr Snowdon had her in Class 1.

[28] Dr Mason saw the plaintiff about five months after Dr Malik.

…

[30] My reading of the history given to Dr Mason is of a much worse condition, in respect of travel, than that given to Dr Malik. The Appeal Panel was wrong to observe that there had been no change in the respondent’s condition.

66. His Honour observed that this deterioration “might, logically, generate a movement of the plaintiff from Class 2 to Class 3” (at [32]).

67. His Honour found that there was no force in Ms Rogers’ criticism of the Appeal Panel for failing to itself assess the plaintiff (at [31]):

The Appeal Panel could not have conducted a further assessment. A referral would have been needed under s 329. I do not see why the panel could not rely on the previous assessments, especially bearing in mind that it was conducting an appeal from Dr Mason’s assessment. Of course, use of the previous assessments requires that they be interpreted correctly.

68. His Honour found error on the face of the record because the Appeal Panel had erred by treating the descriptive categories in the PIRS as prescriptive and not as a guide capable of being surmounted by other relevant facts, the history obtained by Dr Mason and Dr Mason’s own medical experience and opinion. The following observations are relevant:

[36] The issue then arises as to the weight to be given to the example. In other words, does a particular journey (such as to the GP or the local shops), or even one instance of ‘solo’ travel without a support person, necessarily disqualify a Class 3 assessment?

…

[39] I think it clear that the examples are not mandatory rules. It is not necessary to fit perfectly within or outside of a particular example in order to fall, or not fall, into a particular class. While I agree with the first defendant that the driving example is simple, I disagree that it is therefore prescriptive. I think this is emphasised by Chapter 11.6 …

[40] The just quoted passage, taken with what is stated in chapter 11.12, and the observations of Garling J in Jenkins, combine, I think, to compel these conclusions:

(1) the examples do not need to be strictly adhered to; and

(2) the history given to the medical assessor and the subsequent diagnosis may all be taken into account in the allocation of a particular Class.

[41] The severity of the symptoms given to Dr Mason, which I have quoted above, are consequently available to assist in the placement of the plaintiff within the appropriate class. Further I note the Principles of Assessment in Ch 1.6 which state that an assessment “involves clinical assessment of the claimant as they present on the day of assessment …” giving added strength to Dr Mason’s history which was the most recent.

[42] The approach taken by the Appeal Panel, as I read the reasons, is that by simply having journeys where there was no support person, the plaintiff was not able to fit within Class 3.

…

[45] The Appeal Panel, in my opinion, made an error on the face of the record, as well as in law, by treating the example in the Class 3 guideline as prescriptive and not as a guide capable of being surmounted by other relevant facts, including the history given by the plaintiff to Dr Mason.

69. Relevantly, his Honour found merit in the HSU’s submission that the Appeal Panel was correct to overturn the decision of Dr Mason because of an unsupported reasoning process, as illustrated by failing to give reasons for disagreeing with Dr Snowdon and Dr Malik about their conclusions on travel (at [48]-[49]). For this reason, his Honour found that it was not appropriate to restore Dr Mason’s decision (the primary relief sought by Ms Rogers) and instead remitted the matter.

The significance of the descriptions in the PIRS categories

70. Before turning to consider what happened when the matter was remitted, I consider it relevant to comment on one of the findings made by Elkaim AJ; namely, that the descriptions in the PIRS categories are not “prescriptive”.

71. The first Appeal Panel had found, inter alia, that Ms Rogers could not have been Class 3 (moderate impairment) because she could travel away from her own residence without a support person whereas the Guidelines state that to be classified as Class 3 the worker cannot travel away from their own residence without a support person. Despite the fact that there was evidence of Ms Rogers being able to drive both locally (to her hairdresser and general practitioner) and to Newcastle from Maitland, Elkaim AJ held that this did not preclude her from a Class 3 assessment. In so finding, his Honour relied on the decision of Garling J in Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (“Jenkins”).

72. In Jenkins, the plaintiff had submitted that the medical assessor had erred by not addressing each of the descriptors in the PIRS categories and by giving certain descriptors more weight. The Appeal Panel found that there was no demonstrable error because the descriptors were examples only and not prescriptive. In this Court, Garling J rejected the plaintiff’s submission that a medical assessor is restricted to solely using the examples of activities as the basis for a rating of a class or as the minimum basis for a rating. The PIRS table used as an example in that case (at [38]) was Table 11.1 (self care and personal hygiene) which provides examples such as “may look unkempt occasionally”, “sometimes misses a meal or relies on take-away food” and “needs prompting to shower daily and wear clean clothes”. These can truly be described as examples of behaviour which may suggest a particular class rating.

73. Garling J identified the following reasons for his Honour’s conclusion (at [58]-[65]):

[58] … First, the submission pays no heed to the importance, to which I have referred, of clinical assessment and judgment, both of which are required in formulating an opinion.

[59] Secondly, as clause 11.7 of the WorkCover Guides records, there is an expectation that the psychiatrist will provide a rationale for the rating which is assigned. That rating is said to be: “… based on the injured worker’s psychiatric symptoms”.

[60] But the activities (or perhaps lack of them) listed in the various tables go beyond symptoms. Those examples attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described.

[61] Next, the submission pays insufficient attention to the words in clause 11.13 of the WorkCover Guides. The words require the AMS to use the standard form when scoring the PIRS. It specifically then provides that the examples of activities are “examples only”. It then enjoins the AMS to take account of a person’s cultural background and to consider the individual’s activities that are usual “… for the person’s age, sex and cultural norms”.

[62] None of the specific examples reflect age differences. None of the specific examples necessarily reflect gender differences or cultural norms. On the contrary, the examples are generic and general in their description. They are not particularly specific. For example, in Class 2 in Table 11.1 of the PIRS, one example which is given is that the person may look unkempt occasionally. One can readily imagine that looking unkempt would be a matter which would vary where one was considering the activities and behaviour of a person in their late teenage years when compared with a person who was much older. What is unkempt in those circumstances would, itself, vary.

[63] Equally, the boundaries between the classes are not of themselves bright line boundaries.

[64] In my opinion, it is to misread the WorkCover Guides to require, as the plaintiff’s submissions would, that the AMS can only proceed either by using the examples in the tables solely as the basis for a rating, or as the minimum basis for a rating.

[65] I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.

(Emphasis in original.)

74. As I raised with counsel at the hearing, the “examples” considered by Garling J were, in fact, different examples of how “Self care and personal hygiene” could be assessed. By way of contrast, there are no examples (or non-prescriptive illustrations) provided in Table 11.3 (travel); rather there is a description which reads as closed criteria. To put this another way, either a person can travel without a support person (Class 2) or they can’t (Class 3). No other “examples” are provided.

75. Thus, although I accept the reasoning of Garling J in the context of the factual case before him, I have reservations as to whether the same reasoning can apply to the relevant PIRS scale for “travel” in Ms Rogers’ case.

Second decision of the Appeal Panel

76. On 12 May 2025, the matter was referred to a differently constituted Appeal Panel (constituted by Principal Member Josephine Bamber, Medical Assessor Professor Nicholas Glozier and Medical Assessor Dr John Lam-Po-Tang).

77. On 29 July 2025, the Appeal Panel once again set aside Dr Mason’s MAC and issued a new MAC which assessed Ms Rogers’ WPI at 7%. Again, this was based on an assessment of travel as Class 2.

78. At [9], the Panel observed that it had conducted a review of the original medical assessment “but limited to the grounds of appeal on which the appeal is made”.

79. The Appeal Panel went on to note that it had conducted a preliminary review and determined that it was not necessary for Ms Rogers to undergo a further medical examination because the Panel already had before it detailed evidence about travel. The Appeal Panel identified the following submissions by the parties on this issue:

[12] The appellant submitted at [1.8] of its submissions that the appeal may be resolved by re-examination of Ms Rogers but otherwise, relies on its written submissions. At [3.1] the appellant only sought re-examination “if required and the Appeal Panel determines it is necessary”.

[13] In her Notice of Opposition to Appeal Against the Decision of Medical Assessor Ms Rogers agreed that the appeal can be decided by an Appeal panel solely on the basis of the written application and any written notice of opposition. In her supporting submissions she does not seek re-examination by the Panel.

(Emphasis added.)

80. It appears that the parties relied on the same written submissions as were before the first Appeal Panel. The second Appeal Panel summarised the HSU’s written submissions as follows:

[19] In summary, the appellant submits that the Medical Assessor’s assessment was made on the basis of incorrect criteria and contains a demonstrable error. At [1.4] of its submissions it identifies the specific error it asserts that the Medical Assessor made, that he assessed Ms Rogers with a class 3 moderate impairment for Travel under Table 11.3 of the PIRS. It submits that this class is inconsistent with the evidence which was before the Medical Assessor including qualified medical reports, Ms Roger’s statement evidence and her evidence provided directly to the Medical Assessor. The appellant submits that this resulted in an error in the application of assessment criteria and caused a demonstrable error on the face of the MAC.

[20] The appellant sets out in its submissions various legal authorities and acknowledges that those authorities state that “[i]n relation to classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense”.

[21] After summarising the histories taken by the Medical Assessor, Dr Malik and Dr Snowdon, the appellant referred to the following evidence which it argues the Medical Assessor failed to properly review and consider:

(a) Ms Rogers’ signed statement dated 2 July 2023 [13] which suggested she could travel away from her own residence without a support person, but that was rare. She did this to usually only go to appointments because otherwise her anxiety could sometimes be debilitating;

(b) the certificates of capacity do not list any restrictions relating to driving, and

(c) the Vocational Assessment Report dated 18 November 2020 does not refer to any barriers related to her travel or driving.

[22] At [1.20] the appellant submits these issues amount to more than a mere disagreement about the level of impairment. It submits that error by the Medical Assessor as discussed by Campbell J in Ferguson has occurred. The appellant submits that if the evidence that was before the Medical Assessor was taken into account “the resulting class impairment rating would be class 2 mild impairment.” It seeks orders for the MAC to be revoked and a fresh MAC issued.

(Emphasis added.)

81. In its findings, the Appeal Panel summarised the evidence about travel including Dr Murphy, Dr Burford, Mr Hiscox, Ms Rogers’ statement, Dr Snowdon, Dr Malik and Dr Mason (the MAC) extracted above at [25]-[54].

82. The Appeal Panel accepted the HSU’s claim that Dr Mason made a demonstrable error, describing this error as a failure to give reasons for disagreeing with Drs Malik and Snowdon and their assessments of “travel” (at [30]). This finding is the subject of complaint under grounds 2-4.

83. The Appeal Panel went on to assess the appropriate class for travel. It made the following findings:

[31] The Panel acknowledges that that [sic] Chapter 11.12 of the Guidelines, set out above, does clearly state that the examples of activities given are only examples and the Panel finds that they are not prescriptive. It is therefore necessary to carefully consider the histories given by Ms Rogers in this case. The Panel finds that all the histories have in common the fact that Ms Rogers can drive her car without a support person being in the car with her. However, the Panel disagrees with the class 1 adopted by Dr Snowdon. The anxiety Ms Rogers describes during travelling beyond her home is more than a minor deficit, which is applicable to class 1.

[32] The Medical Assessor adopted class 3. However, in addition to failing to give reasons for disagreeing with Drs Malik and Snowden, the Medical Assessor’s certificate has some internal contradictions in the history which he does not deal with. For instance, he states, “She said she does not go anywhere unless she is accompanied because of anxiety. She said an exception to this was to attend medical appointments or the local shops on rare occasions.” However the description in the PIRS form is that Ms Rogers attends her general practitioner monthly. The Panel does not consider this can be considered on a “rare occasion”.

84. Significantly, the Appeal Panel went on to observe the following at [33]:

[33] Furthermore, the Medical Assessor places reliance on the fact that when she attends the Newcastle office for training she is met in the carpark by her supervisor who also walks her back there. When one considers the history of Dr Snowdon, this escorting to and from the carpark seems more likely than not on the balance of probabilities to relate to her fear of re-exposure to members of the Union once out of the car. The Panel finds that the Medical Assessor has not sufficiently taken into account the fact that Ms Rogers can actually drive on her own to Newcastle. She does not require an accompanying support person to undertake that drive.

85. This finding at [33] of the Appeal Panel decision is the subject of the complaint made under ground 1 in this Court.

86. The Appeal Panel went on to find:

[34] In addition, the Medical Assessor has not taken into account the further history given to Dr Snowdon that Ms Rogers can drive on her own weekly to her hairdresser.

[35] For these reasons, the Panel does not accept the conclusions reached by the Medical Assessor that class 3 is the appropriate class for travel. The Panel has come to the same conclusion as reached by Dr Malik that class 2 is the appropriate class in relation to travel. He found that Ms Rogers is able to drive, when she is in the car, she feels safe as doors are locked. He added that she can travel without support person to familiar places but on unfamiliar places she gets anxious. He did not find that she needs a support person to travel to unfamiliar places. In coming to this conclusion, the Panel has also considered the medical certificates issued by her long time general practitioner, Dr Burford. None of them certify that Ms Rogers has restriction on her driving.

[36] In summary, the Panel considers the appropriate class for travel is class 2. The PIRS ratings in ascending order are 2,2,2,2,3,3, with a median of 2 resulting in a final WPI of 7%.

87. Ms Rogers now seeks judicial review of this second Appeal Panel decision.

The Summons

88. In her Summons, Ms Rogers advances four grounds of review:

89. The Appeal Panel denied her procedural fairness when it determined that the factual account relied on by Dr Snowdon was inconsistent with the correct categorisation of a Class 3 impairment rating for travel without further examining Ms Rogers or providing the parties an opportunity to make submissions on the issue;

90. The Appeal Panel misapplied the test as to whether there was error on the part of Dr Mason;

91. The Appeal Panel exceeded its jurisdiction and/or misconceived its function when it went beyond the ground of appeal on which the appeal was made; and

92. In the alternative to ground 3, the Appeal Panel failed to notify the parties that it intended to go beyond the ground of appeal and did not give the parties an opportunity to be heard.

93. At the hearing before me, counsel for the plaintiff indicated that grounds 2-4 travel together and accordingly I propose to consider them together.

Consideration: Ground 1 – denial of procedural fairness

90. A failure to afford procedural fairness to a party constitutes both jurisdictional error and error of law within jurisdiction: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [5], [17]-[42], [170]. As the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [32]:

In [Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576] the Full Court rightly said:

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”

(Emphasis in original and footnote omitted.)

91. Ms Rogers relied on the decision of Barr AJ in Fairfield City Council v Janet Brear [2010] NSWSC 480 as an example of these principles being applied to a decision of an Appeal Panel. In that case, the parties had both submitted that the second edition of the Guidelines applied. Without notice to the parties, the Appeal Panel determined the matter in accordance with the third edition of the Guidelines. Barr AJ found that the Appeal Panel had denied the plaintiff’s right to make submissions on the question and thus denied procedural fairness. At [30], Barr AJ referred to the decision of Ipp JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 and his Honour’s statement of principle at [78]-[79] as follows:

[78] These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.

[79] A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.

92. Similarly, in Markovic v Rydges Hotels Limited [2009] NSWCA 181, the Appeal Panel had reduced some of the impairments assessed by the approved medical specialist based on matters not raised by either party and without inviting submissions on the issue. The Court of Appeal (Handley AJA, Allsop P and Hoeben J agreeing) quashed the medical assessment certificate on the ground that no opportunity to be heard was afforded (see at [33]-[35]).

93. With these principles in mind, I turn to consider the first ground of review. It was described during the hearing as the “primary” ground, and summarised as follows:

… [T]he plaintiff’s position is advanced on the basis that in circumstances where the second defendant did not assess the plaintiff, as in re-examine the plaintiff … and did not fairly put to the plaintiff this proposition that the reason she needed a support person was because there was fear of re-exposure, and in doing so relying upon the rather old assessment of Dr Snowdon, then that’s a failure to afford procedural fairness to the plaintiff. That’s the primary ground of appeal [sic] …

94. The relevant factual finding is at [33] of the decision of the Appeal Panel (extracted above at [84]) being that the reason that Ms Rogers was escorted to and from the carpark after driving to Newcastle for training was due to her fear of re-exposure to union members. That finding relied on the history recorded in Dr Snowdon’s report of 1 March 2023 which read as follows:

Ms Rogers had then mentioned that she has, however, been becoming increasingly anxious since two weeks ago, when she was advised that, together with some from the office in Argyle Street, Newcastle, and eight members of her Network Team, she will be required to attend that office for a day of joint instruction.

She said that, in response, however, to her reporting her anxiety at this meeting, Mr Collinson had volunteered to meet her in the carpark, and return her there, to then travel home.

In this regard, Ms Rogers had reported a continued fear of re-exposure to members of the Union, reporting an incident a month before Christmas 2022, in which, when looking in a post office window, she turned and came face to face with one of the men in her office, Mr Patrick Craven, and subsequently collapsed.

(Emphasis added.)

95. This account is summarised in the Appeal Panel’s reasons at [28](e):

She told Dr Snowdon when she heard of the requirement to attend the office she reported her anxiety to her manager who volunteered to meet her in the carpark and return her there at the conclusion. In the next paragraph Dr Snowdon related Ms Rogers continued fear of re-exposure to members of the Union and sets out details of a meeting the month before Christmas 2022.

96. As the passages above show, the Appeal Panel’s conclusion that Ms Rogers’ fear related to exposure to members of her former employer relied on the history provided by Ms Rogers to her own doctor, Dr Snowdon. In this Court it was submitted that this history was “not clear” such that the conclusion of the Appeal Panel was not established on the evidence. The lack of clarity was said to arise in the three paragraphs extracted above at [94] because Dr Snowdon’s report did not make it clear whether his opinion was that Ms Rogers needed to be escorted due to her fear of re-exposure. It was further submitted that the conclusion was inconsistent with the fact that Ms Rogers later reported an inability to drive beyond her local area in most circumstances.

97. Turning to the relevant portions of Dr Snowdon’s report, the words “in this regard” in the third of the three paragraphs link what comes after those words to what has preceded it; namely, that Ms Rogers was escorted due to her fear of re-exposure to the HSU employees who bullied her. The account provided to Dr Snowdon is that after Ms Rogers reported her anxiety, the measure to allay that was to escort her to and from her car; not to arrange for her to be driven with a support person. Further, Dr Snowdon described that “in this regard” (which can only mean in the regard of her anxiety about attending the Newcastle office), “Ms Rogers had reported a continued fear of re-exposure to members of the Union”.

98. As I understand the arguments put on behalf of Ms Rogers, her contention is that those passages in Dr Snowdon’s report were ambiguous because they could equally be read as meaning that Ms Rogers’ anxiety was caused by the fact of the driving itself. The ambiguity, it was submitted, could only be resolved by giving the parties the opportunity to make further submissions as to the true meaning of those passages. I am not satisfied that this is the case; the alternative meaning contended for by Ms Rogers is not only inconsistent with the actual words in Dr Snowdon’s report, but, as a matter of coherence, it is difficult to see how Ms Rogers being met at the end of a trip would allay any anxiety about the trip itself, which preceded it.

99. Many of the submissions made by the parties under this ground were, in effect, a complaint that the finding (as to the reason Ms Rogers needed to be met in the carpark at Newcastle) should not have been made as there was other evidence which would lead to a contrary conclusion. This included Ms Rogers’ account to Dr Mason that she cannot leave the house without a support person and cannot travel on public transport due to anxiety. There was also evidence that Ms Rogers could drive on her own to appointments and her evidence in her statement dated 2 July 2023 that while “rare”, she could travel away from her own residence without a support person.

100. Ms Rogers also placed some reliance on the suggestion by Elkaim AJ that her condition had deteriorated since she was seen by Dr Snowdon. I am not bound by that factual finding of Elkaim AJ and am not satisfied that the material before the Appeal Panel was such as to suggest any significant change in Ms Rogers’ condition. The fact is that there had been marked improvements in the other PIRS categories since Dr Snowdon’s assessment, a factor not averted to in Elkaim AJ’s conclusion on this issue. Nor did Ms Rogers ever suggest to Drs Malik or Mason that her condition had deteriorated since she saw Dr Snowdon.

101. Ms Rogers also relied on the concession made by the HSU recorded in Elkaim AJ’s decision at [34] that Ms Rogers travelling to her work seminars, where she was escorted from her car to the building, qualified as “travelling with a support person”. It was submitted on behalf of the HSU that this concession did not extend to a concession that the entire trip from her home to Newcastle qualified as “travelling with a support person”. I am ultimately satisfied there was no inconsistency between the submission put to Elkaim AJ and reliance on the Appeal Panel’s finding that Ms Rogers could drive on her own to Newcastle.

102. The parties’ submissions under this ground strayed on occasion into merits review and whether it was open to the Appeal Panel to make the finding it did in relation to the reason why Ms Rogers needed to be met in the carpark. I have had regard to these submissions but only to the extent that they inform the question of whether there has been a denial of procedural fairness in relation to the finding at [33] of the reasons.

103. As for Mr Rogers’ complaint about the failure to re-examine her, it is well established that an Appeal Panel cannot obtain a further medical assessment unless it is first satisfied that there is demonstrable error in the medical certificate under appeal. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 ("NSW Police Force"), Davies J identified that the task of the Appeal Panel is a two-stage process as follows (at [32]-[33]):

The Appeal Panel's function was either to confirm the MAC or to revoke it and issue a new certificate - s 328(5). On one view, that subsection read together with s 329 might be thought to preclude the Panel making a referral at any stage for further assessment even from one of its own members. That would be an unfortunate result and would not sit easily with s 324(3) which appears to contemplate an assessment "in the course of an appeal". The Guidelines issued pursuant to s 376 of the 1998 Act would also appear to authorise such a further assessment (assuming paragraph 45 thereof is within power).

However, if 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.

104. More recently, in Johnson v Suncorp Staff Pty Ltd [2024] NSWSC 102, Griffiths AJ extracted a portion of the above passage and went on to observe the following at [95]:

This view has been followed in many subsequent cases, including quite recently by Chen J in Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [130]. His Honour identified at [125] many other cases in which Davies J's view has been applied and adopted. The plaintiff did not contend that NSW Police Force was clearly wrong. I respectfully agree with Davies J's analysis and observations and will follow them. Accordingly, the Panel's power to decide that one of the appointed AMS's should conduct a re-examination of an appellant only arises after it has determined that there is an error in a medical assessment certificate, which then requires the need for a further assessment and a fresh certificate. (Emphasis in original.)

105. Not only is there no statutory basis for an Appeal Panel to order a re-examination before error is found, nor is there any basis for an Appeal Panel to accede to a request by a party for such an assessment before error is established, as Griffiths AJ observed in Johnson v Suncorp Staff Pty Ltd at [94]-[97].

106. The portion of the Appeal Panel’s report giving rise to the complaint of a denial of procedural fairness is to be found in the reasons after the Panel was satisfied of error and as part of its new finding. In that regard I do not accept the argument advanced on behalf of the HSU that there was no statutory power for the Appeal Panel to order a new examination. Rather, the difficulty for Ms Rogers is that her position before the Appeal Panel was that she did not need to be re-examined by the second Appeal Panel. That is so despite the fact that central to Elkaim AJ’s reasoning was the possibility that there had been deterioration in her condition since her examination by Dr Snowdon: see above at [65]-[66]. The fact remains that when the matter was remitted to the Appeal Panel following that decision, Ms Rogers asserted in her appeal notice that she did not wish to be examined again.

107. If Ms Rogers had stated in her application that, in the event that error was found and the Appeal Panel undertook the assessment of “travel” again, she wished to be re-examined and the Appeal Panel had declined to do so, then this ground would have some force. But it is difficult to establish a denial of procedural fairness based on a failure to be re-examined when you have expressly stated that you do not need to be re-examined for the purpose of the appeal.

108. I am not satisfied that there was the ambiguity in the account provided by Dr Snowdon such as to require the Appeal Panel to obtain further submissions from the parties as to what those passages meant.

109. Accordingly, I am not satisfied that the first ground of review has been established.

Grounds 2-4: departure from ground of “demonstrable error”

110. While grounds 2, 3 and 4 plead different types of error in the Appeal Panel’s decision, they all essentially contend that the Appeal Panel departed from the grounds of appeal raised by the HSU when finding that Dr Mason made a demonstrable error within the meaning of s 327(3)(d) of the 1998 Act. In order to understand the complaint made under these grounds it is necessary to understand the statutory scheme for internal appeals.

111. As outlined above at [22], s 327(3) of the 1998 Act identifies the only four grounds on which an appeal to an Appeal Panel may be brought. The HSU relied on the two “error-based” grounds in s 327(3)(c) and (d) which turn on what appears on the face of the certificate (see Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [61] per Leeming JA). These grounds are that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and that the medical assessment certificate contains a “demonstrable error” (s 327(3)(d)).

112. As to what is encompassed by the term “demonstrable error”, in Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, Hoeben J found that “demonstrable error” in s 327(3)(d) is an error “readily apparent from an examination of the medical assessment certificate”: at [39]. Similarly, in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, Gleeson JA (with whom Macfarlan JA and Barrett AJA agreed) noted at [77] that error alone is insufficient and that the word “demonstrable” may convey “the degree of strictness of scrutiny to which the decision of the approved medical specialist may be subjected”. His Honour went on to explain at [86] that the 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”.

113. Both parties referred me to the judgment of Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887. At [24], his Honour stated the following:

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.

(Emphasis added.)

114. In his decision, Elkaim AJ was of the view that Campbell J was not intending to make a statement of principle in the above extract but was rather describing the approach that the Appeal Panel had taken in the case before it. Despite this, both parties before me adopted the language of “unsupportable reasoning process” as an example of a demonstrable error.

115. The manner in which an appeal panel must deal with an appeal is set out in s 328 of the 1998 Act. Section 328(2) provides that an appeal to an appeal panel is by way of review of the original medical assessment but that this review must be “limited to the grounds of appeal on which the appeal is made”.

116. The part of s 328(2) confining a review to the grounds advanced by the appealing party was added by the Workplace Compensation Legislation Amendment Act 2010 (NSW) in apparent response to the decision of the Court of Appeal in Siddik v Workcover Authority Authorities of NSW [2008] NSWCA 116: Inghams at [40]. In that decision, McColl JA (with whom Mason P and Giles JA agreed) had found that an appeal panel could consider grounds of appeal which differed from those advanced by the parties if it complied with the requirements of procedural fairness (at [98]-[101]).

117. The effect of the amendments to s 328(2) was considered by Davies J in NSW Police Force. Davies J rejected a submission that the Appeal Panel could consider any demonstrable error under s 327(3)(d) even if not identified by the parties and instead found that s 382(2) refers to the grounds as specified in the submissions accompanying the appeal. His Honour observed the following (at [49]):

… [I]t is apparent that the submissions are, nevertheless, an integral part of the identification of the grounds of appeal. In that way if a party identifies in respect of a ground (d) appeal particular demonstrable errors, the appeal should be regarded as being confined to those matters. The grounds of appeal taken with the submissions will constitute “the grounds of appeal on which the appeal is made”. In my opinion, that result is most consistent with what the amendments in 2010 must be taken to have intended. (Emphasis added.)

118. Turning to consideration of the remaining grounds, it should be noted from the outset that the Appeal Panel was clearly aware that it was limited to the grounds relied upon given the observations at [9] of its reasons as follows:

The present Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.

119. Although the “demonstrable error” relied upon by the HSU was the assessment of Class 3 rather than Class 2 for travel, that error encompassed an examination of all of the evidence in support of its submission that the finding of Class 3 disclosed demonstrable error. As extracted above at [80], the submissions relied upon to establish demonstrable error were summarised at [19] of the reasons of the Appeal Panel where it was submitted that Class 3 was “inconsistent with the evidence”.

120. The impugned portion of the reasons under these grounds is the finding of the Appeal Panel at [30] which, for ease of reference, is set out again as follows:

The Panel finds that the Medical Assessor did make a demonstrable error when failing to give reasons for him disagreeing with Dr Malik and Dr Snowdon and their respective assessments of “travel”. The Panel therefore finds it is necessary for it to assess the appropriate class for travel.

121. The error relied on is that it was not a ground of appeal that Dr Mason failed to provide reasons for disagreeing with the previous assessments of travel. In other words, because the HSU’s appeal was advanced on the basis that the available evidence did not support Dr Mason’s assessment of Class 3 for travel, the Appeal Panel exceeded its jurisdiction by describing that error in the way it did at [30], erred in failing to notify the parties that it intended to go beyond the grounds of appeal advanced by the HSU and thus denied the parties procedural fairness and failed to correctly identify any demonstrable error or the application of incorrect criteria in Dr Mason’s certificate.

122. The HSU’s primary submission to the Appeal Panel was based on an argument that Dr Mason had failed to “properly review and consider” the available medical evidence. This clearly embraced the failure to provide reasons for disagreeing with the previous assessments of Dr Snowdon and Dr Malik. The absence of a proper review of the medical evidence was central to the complaint raised in submissions on the appeal.

123. I am not satisfied that Ms Rogers’ complaint under these grounds is established. All three grounds fail to grapple with the real complaint made by the HSU and addressed by the Appeal Panel.

124. The Appeal Panel, in addressing the error identified by the HSU, was required to examine the Class 3 assessment for travel in the MAC as against the evidence. In doing so, the Appeal Panel would undoubtedly have had regard to the question raised by Elkaim AJ as to whether Dr Mason engaged in an unsupported reasoning process by failing to give reasons for disagreeing with Dr Snowdon and Dr Malik. The HSU submitted to the Appeal Panel that Dr Mason’s failure to provide reasons for his disagreement with his colleagues amounted to an “unsupportable reasoning process” as part of the demonstrable error. This was recognised by the Appeal Panel at [30].

125. Further, during the hearing of these review proceedings, counsel for Ms Rogers accepted that if, instead of the demonstrable error being described as “failing to give reasons for him disagreeing with Dr Malik and Dr Snowdon and their respective assessments of ‘travel’”, the Appeal Panel had instead described the error as “in its finding of category 3 highlighted by the fact of failing to give reasons for him disagreeing with Dr Malik and Dr Snowdon and their respective assessments of ‘travel’”, then that would have been a “different situation”.

126. As Davies J observed in NSW Police Force at [49], the parties’ submissions to the Appeal Panel are an integral part of the identification of the grounds relied upon including in establishing “demonstrable error”. The fact that in this matter the Appeal Panel noted one of the submissions in particular in finding error established does not support a finding that it departed from the submissions advanced by the HSU in support of its appeal.

127. The Appeal Panel was clearly aware of its obligation to base its finding of error on the particular error relied on. In upholding that error, the Appeal Panel focussed on the aspect of the demonstrable error relied upon (the finding of Class 3 rather than 2) that it found the most persuasive, namely, that the evidence of Dr Malik and Dr Snowdon had been put to one side in that assessment without any explanation.

128. I would not uphold these three grounds either.

Orders

129. Accordingly, I make the following orders:

130. The summons is dismissed.

131. The plaintiff is to pay the first defendant’s costs on the ordinary basis.

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