Saveski v Brunjev Pty Ltd

(a) Dr Kuru's medical assessment

1. Instead of accepting an offer based on 17% WPI, Mr Saveski commenced proceedings in the Personal Injury Commission (PIC). He was referred to Medical Assessor Dr Kuru for assessment. Dr Kuru examined Mr Saveski on 5 December 2023. Dr Kuru was briefed with a copy of Dr Kleinman's report dated 23 April 2023 and Dr Breit's report dated 30 June 2023. He noted in his report under the sub-heading "Consistency of presentation" that the physical examination revealed various restrictions in Mr Saveski's range of motion. Dr Kuru wrote as follows: Consistency of presentation: Mr Saveski was cooperative throughout the assessment. His restricted range of motion, particularly in the elbows and wrists is not consistent with the diagnosed injuries or consequences of surgical treatment he has undergone. The variability between the motion found at different time points and different assessments suggests Mr Saveski is either not at MMI or that assessment of range of motion is not an accurate measure of assessment of impairment in this case.
2. In his report shortly thereafter, under the heading "EVALUATION OF PERMANENT IMPAIRMENT", Dr Kuru answered affirmatively to the question whether "all body parts/systems stabilised/reached maximum medical improvement".
3. Dr Kuru assessed 6% WPI for each of "Cervical spine", "Left upper extremity (primary injury to the left shoulder and consequential conditions to the left elbow and writs)" and "Left upper extremity (consequential conditions to the right shoulder, right elbow and right wrist)". (It is common ground that the second reference to "left upper extremity" is a typographical error and should read "right upper extremity"). In explaining his calculations, Dr Kuru said: An explanation of my calculations, if applicable: The ranges of motion for the shoulders, elbows and wrists are detailed above. As previously stated, significant restriction of range of motion, particularly in the elbows and twists is not consistent with the injuries diagnosed or to be regarded as consequences of surgical treatment Mr Saveski has had. Furthermore, the variability in ranges of motion as detected by Drs Kleinman, Breit and myself either suggest that Mr Saveski is not at MMI, has an alternative diagnosis or that range of motion is not a reliable method to as impairment. In accordance with SIRA page 7, paragraph 1.36 and my clinical skill and judgement, the measurements are not plausible and consistent with the impairment being evaluated. Accordingly, I have modified the assessment of impairment for both upper extremities to 6% whole person impairment.
4. As to Dr Kleinman's report, Dr Kuru found slightly more restricted range of motion in the left shoulder and noted that he was unable to explain the variability in Dr Kleinman's assessment.
5. Dr Kuru also referred to Dr Breit's report and said that he shared his concerns with respect to the accuracy of assessments of range of motion for assessing Mr Saveski's impairment.
6. Among the materials before Dr Kuru was a statement dated 29 September 2023 by Mr Saveski, in which he summarised some of the medical treatment he had received after the accident on 10 September 2011. It is desirable to set out [26] of that statement because it figured prominently in the proceeding before me: My right shoulder pain and discomfort became so severe that Dr Bateman suggested I undergo a further MRI after an unsuccessful injection. That MRI was paid for by my insurer. The MRI showed evidence of a chronic SLAP tear in my shoulder. Dr Bateman has suggested that I undergo surgery to repair the injury. I understand that my insurer has denied liability for that treatment.
7. After making some adjustments, Dr Kuru issued a MAC recording a total of 16% WPI.

(b) The Appeal Panel

1. On 21 December 2023, Mr Saveski appealed against Dr Kuru's MAC. According to the pro forma appeal document (Form 10), the appeal raised the following two grounds of appeal under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act): 1. deterioration of his condition resulting in an increased in the permanent impairment (s 327(3)(a) of the 1998 Act); and 2. the MAC contains a demonstrable error (s 327(3)(d) of the 1998 Act).
2. The appeal document further stated that Mr Saveski did not ask to be re-examined by a medical assessor who is a member of the Appeal Panel, nor was an opportunity requested to present oral submissions to the Appeal Panel. Finally, and somewhat curiously, it was stated on the form that Mr Saveski did not seek leave to rely on the availability of additional relevant information that was not available before the medical assessment.
3. Notwithstanding that Mr Saveski said that he did not seek leave to rely on the availability of additional relevant information, in fact in support of his appeal the Appeal Panel was provided with the following additional material which post-dated Dr Kuru's MAC: 1. Mr Saveski's statutory declaration sworn 19 December 2023; 2. a referral dated 19 December 2023 from Dr Ben Seckold (Mr Saveski's general practitioner) to Dr Edward Bateman, an orthopaedic surgeon; and 3. a certificate of capacity dated 19 December 2023 issued by Dr Seckold.
4. In his statutory declaration, Mr Saveski said that the aches and pains in his right elbow and right shoulder had increased since 5 December 2023. He said that he was due to see Dr Andrew Myers on 15 February 2024 "to discuss surgery to my right elbow as Dr Myers indicated that if the PRP injection was unsuccessful surgery was a likely option". Mr Saveski added that he had also made an appointment to see Dr Bateman on 23 January 2024 regarding his right shoulder. He said that he understood that Dr Bateman "is going to look at further surgery to my right shoulder".
5. Dr Seckold's referral to Dr Bateman mentions an appointment "for an opinion and management. For review of Goran and his right shoulder pain …".
6. The certificate of capacity sets out details of Mr Saveski's past treatment. Under the heading "MEDICAL CERTIFICATION" and sub-heading "Diagnosis of work related injury/disease", Dr Seckold stated: Left shoulder injury + medial and lateral epicondylitis left elbow (related to previous injury shoulder) due for left shoulder decompression / arthroscope under Dr Bateman ongoing pain left shoulder, neck and left elbow
7. Under the heading "MANAGEMENT PLAN FOR THIS PERIOD" and sub-heading "Referral to another health care provider", the certificate states, inter alia, that there is "ongoing review Dr Bateman right shoulder pain continues".
8. Brief written submissions were provided in support of Mr Saveski's application to appeal. Under the heading "Grounds of appeal", the submissions stated: 1. Since the medical assessment was carried out on 5 December 2023, the appellant has suffered a deterioration in his medical condition with increased pain in his right elbow and right shoulder. The appellant is due to be reviewed by Dr Myers on 15 February 2024 in respect of probable surgery to his right elbow. The appellant is due to be reviewed by Dr Bateman on 23 January 2024 in respect of potential surgery to his right shoulder. The appellant's whole person impairment has not reached maximum medical improvement and in the likelihood that he will be having surgery in 2024, his whole person impairment is presently unascertainable. 2. The Medical Assessment Certificate contains a demonstrable error in that the Assessor at page 4, paragraph 7 notes: "The variability between the motion found at different time points and different assessments suggests Mr Saveski is either not at MMI or that assessment of range of motion is not an accurate measure of assessment of impairment in this case." 3. In line one on page 5, the Assessor, without explanation, states: "Have all body parts/systems stabilised/reached maximum medical improvement? Yes." The Assessor does not explain why he did not decide that Mr Saveski had reached MMI when it was raised earlier in the MAC. 4. The appellant seeks leave to have the MAC reviewed by the Appeal Panel pursuant to section 327(3)(a) deterioration of the appellant's condition that results in an increase in the degree of permanent impairment and Section 327 (3)(d) demonstrable error.
9. It is notable that at [4] of the submissions, the grounds of appeal referred to are only those in ss 327(3)(a) (deterioration) and 327(3)(d) (demonstrable error) of the 1998 Act.
10. On 7 February 2024, a delegate of the President of the Personal Injury Commission determined that Mr Saveski's appeal should proceed to an appeal panel in accordance with s 327(4) of the 1998 Act. The delegate was satisfied that the ground of appeal under s 327(3)(d) of the 1998 Act was capable of being made out in that Dr Kuru failed to provide an explanation for finding that MMI had been reached. The delegate added at [8] that the Appeal Panel "may also require the worker to be re-examined by the Appeal Panel, or set the matter down for hearing, in which case separate notification will be sent to the parties". Finally, the delegate said that the issue of admissibility of additional information was ultimately a matter for the Appeal Panel.
11. Notwithstanding that, as noted above, Mr Saveski's appeal application recorded that he relied only on the grounds of appeal under ss 327(3)(a) and (d) of the 1998 Act, at [2] of the Appeal Panel's reasons it is stated that Mr Saveski relied upon all four grounds of appeal specified in s 327(3). This meant that the Appeal Panel understood that the appeal was not limited to deterioration of Mr Saveski's condition and demonstrable error, but extended to include the availability of additional relevant information and the claim that Dr Kuru's assessment was based on incorrect criteria.
12. The Appeal Panel noted at [13] of its reasons that it had all the documents before it that were provided to Dr Kuru, as well as the additional evidence described at [15] above. It said that all this material had been taken into account, as were the parties' respective written submissions.
13. At [20] of its reasons, the Appeal Panel summarised Mr Saveski's submissions as follows: (a) it is submitted that the appellant has suffered a deterioration in his condition since the MAC was carried out, and that he is going to require further surgery to his right elbow and also his right shoulder. On this basis the worker submits he has not reached maximum medical improvement, and (b) the appellant submitted that the Medical Assessor has made a demonstrable error, noting that Medical Assessor suggested that the appellant "is either not at MMI or that assessment of range of motion is not an accurate measurement of assessment of impairment in this case". The appellant submitted that without explanation the Medical Assessor then goes on to answer on page 5, in response to whether all systems have reached maximum medical improvement, his reply is "Yes". The appellant submitted that is in contradiction to the statement by the Medical Assessor made above.
14. The Appeal Panel summarised Dr Kuru's report and reasons at some length, noting in particular the paragraphs set out at [8] above regarding the variability in ranges of motion as detected by Drs Kleinman, Breit and Kuru and whether or not Mr Saveski had reached MMI.
15. The Appeal Panel stated at [30] that in making an assessment of permanent impairment, Dr Kuru was entitled to rely on his clinical findings on the day he examined Mr Saveski.
16. With regard to Mr Saveski's claim that the additional evidence showed a deterioration in his condition which was likely to lead to an increase in the permanent impairment assessed, the Appeal Panel stated at [32] that this additional evidence did "no more than show that on his own report [Mr Saveski] said he had an increase in symptoms in his elbow and shoulder some two weeks after he was assessed by the Medical Assessor". The certificate of capacity noted that Mr Saveski still had some capacity for work and that he had been referred to specialists for further review. The Appeal Panel noted at [32] that this material was relied upon by Mr Saveski as supporting his claim that further surgery was likely to his right shoulder and his elbow.
17. The Appeal Panel noted at [33] that no additional imaging had been provided.
18. Significantly, the Appeal Panel gave the following conclusions at [34]-[35] concerning the additional evidence: 34. The reports from the specialists are not available because the appointments have not taken place. 35. The additional evidence establishes no more than a complaint of an increase in symptoms and referrals to specialist for review. The GP refers to ongoing pain rather than any deterioration in symptoms.
19. As to Mr Saveski's claim that there was an inconsistency in Dr Kuru's reasons concerning whether Mr Saveski had reached MMI, the Appeal Panel stated at [39] that the MAC had to be read as a whole and with regard to the correct criteria for assessment set out in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) (Guidelines).
20. The Appeal Panel noted what is said in [1.36] of the Guidelines on the issue of inconsistency: "Inconsistent presentation 1.36 AMA5 (p 19) states: 'Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual's range of motion are good but imperfect indicators of people's efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.' This paragraph applies to inconsistent presentation only."
21. The Appeal Panel also noted what is said in the Guidelines at [2.3]-[2.5]: "The approach to assessment of the upper extremity and hand 2.3 Assessment of the upper extremity mainly involves clinical evaluation. Cosmetic and functional evaluations are performed in some situations. The impairment must be permanent and stable. The claimant will have a defined diagnosis that can be confirmed by examination. 2.4 The assessed impairment of a part or region can never exceed the impairment due to amputation of that part or region. For an upper limb, therefore, the maximum evaluation is 60% whole person impairment (WPI), the value for amputation through the shoulder. 2.5 Range of motion (ROM) is assessed as follows: 2.5.1 A goniometer or inclinometer must be used, where clinically indicated. 2.5.2 Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated. 2.5.3 If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation. 2.5.4 If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Guidelines. 2.5.5 If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present."
22. The Appeal Panel's central findings and reasoning are set out at [43]-[44] of its reasons: 43. It is clear from the Medical Assessor's reasons that he has considered whether the discrepancies in the ROM meant the appellant was not at MMI. It is readily apparent from a proper reading of the MAC that he finds the appellant has reached MMI but that the discrepancies in the ROM mean that the ROM findings are not able to be used as an accurate measure of impairment and in accordance with paragraph 1.36 of the Guidelines his clinical judgment in assessing impairment has been used instead as follows: "The ranges of motion for the shoulders, elbows and wrists are detailed above. As previously stated, significant restriction of range of motion, particularly in the elbows and twists is not consistent with the injuries diagnosed or to be regarded as consequences of surgical treatment Mr Saveski has had. Furthermore, the variability in ranges of motion as detected by Drs Kleinman, Breit and myself either suggest that Mr Saveski is not at MMI, has an alternative diagnosis or that range of motion is not a reliable method to as impairment. In accordance with SIRA page 7, paragraph 1.36 and my clinical skill and judgement, the measurements are not plausible and consistent with the impairment being evaluated. Accordingly, I have modified the assessment of impairment for both upper extremities to 6% whole person impairment." 44. The approach taken by the Medical Assessor when faced with inconsistent presentation by the appellant is adequately reasoned and in accordance with the correct criteria in the Guidelines. The Appeal Panel can find no error in the approach by the Medical Assessor. The additional evidence does not reach the necessary threshold for the appeal to succeed, namely that the appellant has suffered a deterioration in his condition that results in an increase in the degree of permanent impairment. Nor is the additional evidence sufficient to establish that the appellant is not MMI contrary to the finding of the Medical Assessor.
23. In the proceeding before me, Mr Hart, who appeared for Mr Saveski, drew attention (for the first time) to the fact that there was no reference in either Dr Kuru's reasons or in those of the Appeal Panel to [26] of Mr Saveski's statement dated 29 September 2023 (see at [11] above). This was said to constitute jurisdictional error and/or error of law on the face of the record.

(a) The legal framework summarised

1. The functions of an appeal panel are set out in s 327 of the 1998 Act, which relevantly provides: Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds - (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. …
2. The Court of Appeal considered the meaning of s 327(3)(a) in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW and Ors [2007] NSWCA 149. At [94], Campbell JA (with whom Hodgson JA agreed) observed that the sort of "deterioration" relevant under s 327(3)(a) is "deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place." At [122], Handley AJA added that s 327(3)(a) "is entirely focused on what has happened to the worker since [the MAC]."
3. The meaning of "demonstrable error" was considered in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [76]-[87]. 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". At [78], his Honour emphasised that the error must be "contained" in the certificate, in the sense that it is "apparent in the certificate of the approved medical specialist". 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".
4. The manner in which an appeal panel must deal with an appeal is set out in s 328 of the 1988 Act, which relevantly provides: Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. (2A) To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.
5. The Guidelines are made under s 376 of the 1998 Act and have the force of delegated legislation (Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] per Bell P and Payne JA). Relevantly, the concept of "maximum medical improvement" is explained in [1.21] of the Guidelines as follows: Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the injured worker is fully ascertainable. The permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical improvement. This is considered to occur when the worker's condition has been medically stable for the previous three months and is unlikely to change by more than 3% WPI in the ensuring 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated).

(b) Disposition

1. Mr Hart explained that Mr Saveski's challenge to the Appeal Panel's confirmation of Dr Kuru's MAC related to the level of WPI which was required to receive long-term benefits under the Workers Compensation Act 1987 (NSW). To succeed on a judicial review, Mr Saveski needs to establish either jurisdictional error or error of law on the face of the record (see generally Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [18]-[20] per Leeming JA, with whom Gleeson and Payne JJA agreed).
2. Ground 1 is confusingly framed, but centres upon a claim that the Appeal Panel failed to "provide a path of reasoning" (citing Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [57]). At [25] of his submissions, Mr Saveski specifically contends that the Appeal Panel was obliged (but failed) to provide a path of reasoning which rejected the possibility that range of motion discrepancies meant that Mr Saveski was not at MMI (or that he had an alternative diagnosis).
3. The Appeal Panel was clearly subject to an implied statutory duty to give reasons (see generally Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [117], [121]-[122] and [130]).
4. It is well-settled that the reasons of an appeal panel should be read fairly and as a whole (see, for example, New South Wales Land and Housing Corp v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] per Bell P (as his Honour then was), with whom Ward JA (as her Honour then was) agreed and Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [52] per Basten AJ).
5. The Appeal Panel's path of reasoning in determining there was no demonstrable error is readily comprehensible. The Appeal Panel recognised that Dr Kuru had considered that range of motion discrepancies "either suggest that Mr Saveski is not at MMI, has an alternative diagnosis or that range of motion is not a reliable method to assess Mr Saveski's impairment" (my emphasis). It went on to stress, however, that Dr Kuru's application of [1.36] of the Guidelines suggests that he ultimately regarded range of motion discrepancies as a matter which went towards assessment of impairment (and not towards MMI). This reading also makes sense of Dr Kuru's explicit answer of "yes" when asked the pro forma question whether Mr Saveski was at MMI.
6. In my view, the Appeal Panel's reasoning concerning demonstrable error was adequate in circumstances where Mr Saveski's primary complaint was that Dr Kuru's observations concerning MMI were contradictory. Perhaps the highest Mr Saveski's case can be put is that there is no indication in the Appeal Panel's reasons that it had any regard to evidence which was before Dr Kuru in relation to MMI. As the Court of Appeal noted at [86] in Vannini, demonstrable error can be established, at least in part, by reference to materials which were before the medical specialist. However, it is significant that Mr Saveski made no specific submission to the Appeal Panel to the effect that Dr Kuru improperly interpreted any of the evidence before him. (Indeed, it might be noted that both Drs Breit and Kleinman also considered that Mr Saveski was at MMI).
7. In my view, the failure of both Dr Kuru and the Appeal Panel to make specific reference in their reasons to [26] of Mr Saveski's statement dated 29 September 2023 does not amount to jurisdictional error and/or error of law on the face of the record. First, it is notable that Mr Saveski's brief written submissions in support of his appeal made no reference to Dr Kuru's failure to deal with that evidence. It is therefore hardly surprising that the Appeal Panel did not squarely address that evidence.
8. Secondly, the Appeal Panel indirectly addressed that material (albeit by reference to the additional evidence) when it concluded at [35] of its reasons that the additional evidence established no more than a complaint of an increase in symptoms and a referral to a specialist for review (more accurately, there were referrals to both Drs Myers and Bateman). The Appeal Panel's characterisation of the additional evidence applies equally to Mr Saveski's earlier statement.
9. If Ground 1 is intended to apply not only to the Appeal Panel's finding that the MAC did not contain a demonstrable error and applies to the other three grounds of appeal under s 327(3), then I reject Mr Saveski's contention that the Appeal Panel's reasons fail to provide an adequate path of reasoning as to why the Appeal Panel was not satisfied that those other grounds were made out. The Appeal Panel plainly had regard to the additional evidence provided by Mr Saveski in support of his contention that his condition had deteriorated and increased the level of his permanent impairment. At [32] of its reasons, the Appeal Panel found that the additional evidence did no more than show that Mr Saveski claimed to have had an increase in symptoms in his elbow and shoulder two weeks after he was assessed by Dr Kuru. The Appeal Panel concluded at [35] that Mr Saveski's statement, along with Dr Seckold's updated certificate of capacity and his referral to Dr Bateman "establishes no more than a complaint of an increase in symptoms and referrals to [a] specialist for review". The Appeal Panel also noted that Dr Seckold had referred to "ongoing pain" as opposed to any deterioration in Mr Saveski's symptoms.
10. Nor was the Appeal Panel persuaded that Dr Kuru's assessment had been made on the basis of incorrect criteria. Its reasons are set out at some length at [39]-[44] of its reasons, which are summarised at [31]ff above. The Appeal Panel's path of reasoning is sufficiently exposed. Ground 1 is rejected.
11. Ground 2 claims that it was legally unreasonable for the Appeal Panel to uphold the MAC in circumstances where Dr Kuru had recognised the possibility that Mr Saveski was not at MMI (or that he had an alternative diagnosis). In this respect, Mr Saveski submits that the Appeal Panel "was required to deal with Dr Kuru's reasons, with all the relevant evidence", including the evidence before the Appeal Panel "that shoulder surgery was to take place" (presumably referring to [26] of Mr Saveski's statement dated 29 September 2023). Mr Saveski submitted that [1.6] of the Guidelines required the Appeal Panel, in determining whether the condition had reached MMI, to conduct a clinical assessment of Mr Saveski as presented on the day of assessment, taking into account his relevant medical history and all the available relevant information. He submitted that it was legally unreasonable for the Appeal Panel not to find that Dr Kuru's assessment was not an "accurate, comprehensive and fair assessment". He further contended that this amounted to a material error, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72]. He appeared to contend that there was jurisdictional error because the Appeal Panel's decision "is irrational and illogical in simply adopting and justifying the impairment assessment by Dr Kuru."
12. For the following reasons, Mr Saveski's submissions should be rejected.
13. First, the submissions misapprehend the concept of legal unreasonableness as explained by the High Court in Li and in other authorities, including Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [276]-[289] per Bathurst CJ; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [10]-[12] per Allsop CJ; and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [47]. These authorities all emphasise the importance of judicial self-restraint in conducting judicial review on the basis of a claim of "legal unreasonableness". It is critically important not to divorce that ground from a careful consideration of the subject matter, scope and purpose of the statute under which the impugned decision has been made. In this regard, it suffices to repeat what Bathurst CJ said in Duncan at [287]: In my opinion, the decision in Li, particularly with its emphasis on the fact that the power conferred on a decision-making authority must be exercised according to law and to reason and within the limit of the subject matter, scope and purpose of the statute, is consistent with the proposition that a decision on factual matters essential to the making of a finding by a decision-maker (in this case a finding of corrupt conduct), can be reviewed on the basis that the reasoning which led to the decision was irrational or illogical irrespective of whether the same conclusion could be reached by a process of reasoning which did not suffer from the same defect.
14. Secondly, Mr Saveski's complaint of legal unreasonableness is essentially a reflection of his dissatisfaction with the merits of the Appeal Panel's decision. He has not identified a level of illogicality or irrationality either in the Appeal Panel's reasons or in its ultimate decision which rises to the height of jurisdictional error or error of law on the face of the record. Moreover, as explained above, the fact that the Appeal Panel did not squarely address part of Mr Saveski's statement dated 29 September 2023 can hardly amount to reviewable error in circumstances where there was no claim raised before the Appeal Panel that Dr Kuru had erred in not addressing that evidence. The Appeal Panel is entitled to be guided by the grounds of appeal and the submissions of the parties. Mr Saveski's submissions to the Appeal Panel were silent on this matter.
15. Thirdly, to the extent that this ground related not only to the issue of deterioration but also to the complaints concerning MMI, I do not consider that the Appeal Panel either failed to disclose its path of reasoning or acted unreasonably in a legal sense in rejecting Mr Saveski's complaints relating to this part of Dr Kuru's assessment, as summarised by the Appeal Panel at [38] of its reasons. After referring to relevant parts of the Guidelines, and emphasising the need to read Dr Kuru's reasons as a whole, the Appeal Panel concluded at [42] that Dr Kuru made clear findings that Mr Saveski had reached MMI and that Mr Saveski "was not making a full effort with regard to range of motion". These findings do not disclose reviewable error.
16. Ground 2 is rejected.
17. Grounds 3 and 4 are addressed together in Mr Saveski's written submissions. The central complaint is that the Appeal Panel "failed to apply itself to the real question to be decided, contributing to a constructive failure to exercise jurisdiction", citing Roger v De Gelder [2015] NSWCA 211; 71 MVR 514 at [95]. However, Mr Saveski does not make clear what he regards as the "real question to be decided". What seems to be submitted is that the Appeal Panel erred in failing to find that the fresh evidence established a deterioration in condition resulting in an increased WPI percentage. The primary submission, in this respect, is that the Appeal Panel "failed to consider the fact that the document evidenced actual likelihood of surgery." The document referred to is the certificate of capacity (see [39] of Mr Hart's written submissions dated 14 January 2025). This failure is also said to render the Appeal Panel's decision ultra vires, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [37].
18. Mr Saveski has failed to demonstrate that the Appeal Panel constructively failed to exercise its statutory jurisdiction or acted ultra vires. On the contrary, for the following reasons, I consider that the Appeal Panel did what it was required to do and fulfilled its statutory task.
19. As noted above, the Appeal Panel acknowledged at [32] that the additional evidence disclosed that Dr Seckold considered that Mr Saveski still retained some capacity for work and that he had referred Mr Saveski to specialists for further review. The Appeal Panel then made express reference to Mr Saveski's suggestion that this meant that "he will likely come to surgery to his shoulder and elbow". But the Appeal Panel plainly viewed this material as providing an insufficient foundation to find that Mr Saveski's condition post Dr Kuru's assessment had deteriorated and resulted in an increase in the degree of permanent impairment or meant that he was not at MMI. Rather, it described the material as establishing no more than that Mr Saveski complained of an increase in symptoms and had been referred to specialists for review. The Appeal Panel also noted that Dr Seckold had referred to ongoing pain, rather than any deterioration in symptoms.
20. In the proceeding before me, Mr Hart drew attention to the Appeal Panel's failure to refer to the front page of the certificate of capacity where the matter set out at [18] above was noted, including the reference to "due for left shoulder decompression / arthroscope under Dr Bateman". This omission does not amount to jurisdictional error or error of law on the face of the record in circumstances where the Appeal Panel was entitled to be guided by Mr Saveski's submissions in support of his appeal, which focused exclusively on a claim that there had been a deterioration in Mr Saveski's medical condition "with increased pain in his right elbow and right shoulder" (emphasis added). No submission was made regarding Dr Seckold's comment in the certificate of capacity that Mr Saveski was "due for left shoulder decompression / arthroscope under Dr Bateman". Moreover, no evidence was provided by Mr Saveski to establish that Dr Bateman had given firm advice that there should be a decompression procedure on Mr Saveski's left shoulder.
21. As pointed out above, the Appeal Panel noted that no additional imaging had been undertaken. Nor was the Appeal Panel provided with any further evidence arising from the appointments Mr Saveski had arranged with both Dr Myers and Dr Bateman. Indeed, the Appeal Panel found at [34] that the appointments had not taken place. Mr Saveski does not challenge that finding.
22. The Appeal Panel further explained at [35] why the additional evidence failed to establish a deterioration in Mr Saveski's condition. That explanation is logical and rational and provides an intelligible justification for the Appeal Panel's assessment of the additional evidence.
23. I reject Mr Saveski's claim that the additional evidence obliged the Appeal Panel to initiate its own inquiries. In oral address, Mr Hart confirmed that this complaint was directed to the failure of the Appeal Panel to re-examine Mr Saveski.
24. It was not legally unreasonable (nor procedurally unfair) for the Appeal Panel to conduct its own assessment of the significance of the additional evidence and explain why, in its opinion, the material failed to establish that Mr Saveski's condition had further deteriorated or had not reached MMI. The Appeal Panel's statutory task under the circumstances presented by this case are far removed from those in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, upon which Mr Saveski relied (see generally, M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Thomson Reuters) at [6.170]ff).
25. There are two further reasons why this particular complaint must fail. First, as noted at [14] above, in his formal appeal application, Mr Saveski stated that he did not ask to be re-examined by a medical assessor. In those circumstances, it is difficult to find error on the part of the Appeal Panel in proceeding consistently with that statement.
26. Secondly, and importantly, notwithstanding that the delegate said in her reasons dated 7 February 2024 for referring the matter to an appeal panel that the appeal panel may also require the worker to be re-examined, that statement is inconsistent with a line of authority which stands for the proposition that an appeal panel has no power to conduct a re-examination until such time as it is established that there is an error in the certificate leading to the need for a further assessment. The authorities commence with Davies J's decision in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]. The relevant authorities were reviewed by me in Johnson v Suncorp Staff Pty Ltd [2024] NSWSC 102 at [94]ff. These authorities should be applied here.
27. For these reasons, grounds 3 and 4 are rejected.
28. Ground 5 is that the Appeal Panel denied Mr Saveski procedural fairness by failing to seek "appropriate submissions on the content and effect" of the fresh evidence, citing Roger. The relevance of Roger is not identified, but context indicates it is relied on for the proposition that a medical appeal panel's failure to respond to a substantial argument based on evidence can amount to jurisdictional error (see at [93]). The "substantial argument based on evidence" appears to be that there had been a deterioration in Mr Saveski's condition, relying on the additional evidence. The Appeal Panel was not obliged to invite further submissions from the parties on the effect of the additional evidence. The Appeal Panel had before it Mr Saveski's written submissions dated 19 December 2023, which bear the same date as the three pieces of additional evidence. It also had before it Brunjev's written submissions dated 4 January 2024. Moreover, it is notable that Mr Saveski's appeal using Form 10 expressly stated that he did not request the opportunity to present oral submissions to the Appeal Panel.
29. The second case cited by Mr Saveski in relation to this ground is Phillips v JW Williamson and RW Williamson trading as Williamson Bros [2016] NSWSC 1681. There, Schmidt J considered that a plaintiff had been denied procedural fairness by an appeal panel in circumstances where the panel refused to receive additional materials or examine the plaintiff in relation to a ground of appeal specifically agitated by the plaintiff (see at [35]-[58]). However, the plaintiff in that case specifically sought to rely on additional materials and an opportunity to be re-examined by a member of the appeal panel (see at [3]). As noted above, Mr Saveski selected "no" when asked whether he wanted these opportunities. In any event, the Appeal Panel admitted and considered the additional evidence lodged by Mr Saveski. The decision therefore provides no authority for the proposition that a medical appeal panel is required to seek "appropriate submissions on the content and effect of the evidence" in circumstances like the present.
30. Mr Saveski referred specifically to [77] of Schmidt J's reasons in Phillips, where her Honour held that the appeal panel had erred in failing to consider the parties' case on whether the plaintiff had reached MMI. However, for the reasons already given above, I consider that the Appeal Panel adequately dealt with Mr Saveski's case concerning MMI.
31. For all these reasons, Mr Saveski has failed to demonstrate how the Appeal Panel's failure to invite him to provide supplementary submissions on the content and effect of the additional evidence caused him any practical injustice.
32. Ground 5 is rejected.

Conclusion

1. For all these reasons, the second amended summons filed 19 September 2024 will be dismissed, with costs.

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