Warwick Campbell v Star Electrical Co Pty Ltd & Ors

The Legislative Framework and Guidelines

1. The Workers Compensation Act 1987 (NSW) ("the 1987 Act"), the WIM and the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment ("the Guidelines") are the relevant legislative and administrative frameworks. Relevantly, the 1987 Act addresses entitlement to compensation resulting from a workplace injury and the WIM regulates the making of claims for compensation and administration of the claims.
2. The degree of permanent impairment resulting from a workplace injury is to be assessed as provided by Div 4 of Pt 3 of the 1987 Act and Pt 7 of Ch 7 of the WIM - see s 65 of the 1987 Act.
3. If a dispute arises from the calculation of the degree of permanent impairment, an application to resolve the dispute can be lodged to the Personal Injury Commission ("PIC").
4. Section 288(1) of the WIM allows a dispute with respect to a claim, which includes the degree of permanent impairment, to be referred to the President of the PIC for determination by the Commission. The President can refer the dispute to a Medical Assessor pursuant to s 293(1).
5. Section 322(1) of the WIM provides that an assessment of degree of the permanent impairment of an injured worker is to be made in accordance with the Guidelines issued by the State Insurance Regulatory Authority under s 376 of the WIM. Presently in force is the 4th edition, re-issued by the Authority on 1 March 2021. The Guidelines in turn adopt the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA 5").
6. Of significance for present purposes: 1. Chapter 1 of the Guidelines provides a general introduction, including broad rules and regulations as to the assessments to be conducted. 2. Chapter 3 of the Guidelines provides that AMA 5 Chapter 17 applies to the assessment of permanent impairment of the lower extremities, subject to where otherwise stated. 3. Complex regional pain syndrome ("CRPS") types 1 & 2 are diagnosed and assessed according to Chapter 17 of the Guidelines. Importantly, the Guidelines require the diagnosis of CRPS to be confirmed by the criteria outlined in Table 17.1.
7. Pursuant to s 325(2) of the WIM, the MAC must: (a) set out details of the matters referred for assessment, and (b) certify as to the medical assessor's assessment with respect to those matters, and (c) set out the medical assessor's reasons for that assessment, and (d) set out the facts on which that assessment is based.
8. An appeal can be lodged under s 327 of the WIM against the decision of the Medical Assessor. The appeal is made to the MAP. Section 327 provides: 327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds - (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out. …

Factual and Procedural Background

1. The Plaintiff suffered injury to his right ankle in a workplace accident on 7 September 2018 in the course of his employment with the First Defendant. On that date, he and a fellow employee were repositioning a heavy switchboard when they lost control of it and it fell onto the Plaintiff. He suffered an injury to his right ankle. He was taken to the John Hunter Hospital where he was diagnosed with a Weber Type C fracture to his right ankle. Under surgery, he had an open reduction and internal fixation of the ankle.
2. Further surgery occurred in December 2018, but persistent pain continued. He was referred to Dr Nicholson, orthopaedic surgeon, for further treatment. In August 2019, Dr Nicholson performed further surgery, however, there was little to no improvement.
3. Dr Nicholson again operated on 4 June 2020; still the Plaintiff did not improve. An MRI was performed together with further surgery in February 2021. Once again, the surgery failed to significantly improve the Plaintiff's condition. He then came under the care of pain specialists; initially Dr Prickett and thereafter Dr Russo.
4. Dr Russo diagnosed the Plaintiff as suffering from CRPS type 1 and provided treatment for that condition.
5. On 25 January 2024, the Plaintiff's solicitors made a claim for lump sum compensation pursuant to s 66 of the 1987 Act. They served a report of Associate Professor Leon Kleinman dated 3 November 2022 on the First Defendant's workers compensation insurer. The claim was based upon Associate Professor Kleinman's determination that the Plaintiff met the criteria for CRPS under the Guidelines and had suffered a 22% Whole Person Impairment ("WPI").
6. On 5 July 2023, the First Defendant's solicitor served a report of Dr Hale dated 5 June 2023 and made an offer to resolve the proceedings based on that doctor's assessment of a 13% WPI. Dr Hale considered that there was evidence of CRPS. He reached the WPI figure of 13%, being 9% for loss of range of movement in the ankle and 5% for the CRPS.
7. The Plaintiff did not accept the First Defendant's offer and an application to resolve a dispute was filed in the PIC on 8 August 2023. The First Defendant filed a reply to the application to resolve a dispute on 31 August 2023.
8. The Plaintiff was referred to Dr Kuru as the Medical Assessor for the assessment of WPI. In the MAC issued on 30 October 2023, Dr Kuru assessed the Plaintiff with a 4% WPI. In summary, he indicated that his findings did not allow a diagnosis of CRPS and the WPI was determined based solely on the loss of range of movement in the Plaintiff's ankle.
9. On 23 November 2023, the Plaintiff's solicitors filed an appeal against the decision of the Medical Assessor. The Plaintiff asserted that the assessment was made on the basis of incorrect criteria and that the MAC contained a demonstrable error. The Plaintiff alleged that Dr Kuru had: 1. Failed to outline the necessary criteria and detail his examination in respect of the criteria; 2. Failed to assess properly, or at all, the Plaintiff's sensory disturbance or nerve injury; 3. Failed to apply the relevant guidelines; and 4. Failed to provide adequate reasons.
10. On 9 January 2024, a delegate of the President of the PIC issued a decision being satisfied that the ground of appeal of there being a demonstrable error in the MAC was capable of being made out and referred the matter to a MAP.
11. The First Defendant's solicitors filed a Notice of Opposition to the appeal on 12 February 2024. They submitted the appeal should be rejected and the MAC should be confirmed.
12. On 22 March 2024, the MAP issued a determination confirming the assessment of Dr Kuru and dismissed the appeal.
13. On 19 June 2024, the Plaintiff's solicitors filed a summons in this Court commencing these proceedings, seeking to have the decision of the MAP quashed with ancillary orders that the matter be remitted for referral to a reconstituted MAP for further assessment according to law and associated relief.

The Evidence

1. The evidence in this matter is comprised solely of the affidavit of the Plaintiff's solicitor Mr David Kolarovski, sworn 30 July 2024. That affidavit annexes all the relevant medical reports, the MAC and the decision of the MAP to which it will be necessary to refer.
2. The first relevant report is the report of Associate Professor Kleinman of 3 November 2022. Associate Professor Kleinman diagnosed the Plaintiff as fulfilling the criteria for CRPS Type I - right lower limb. He also said that the Plaintiff "may have" an underlying component of "nociceptive pain". In a separate report of the same date, Associate Professor Kleinman assessed the WPI of the Plaintiff according to the current Guidelines.. He assessed him as having a 22% WPI.
3. The Plaintiff was also assessed by Dr David Hale on behalf of the First Defendant. In his report, dated 5 June 2023, he confirmed the diagnosis of CRPS, although there was a difference in observations of range of movement and other matters. In a separate report of 5 June 2023, Dr Hale assessed the Plaintiff as fulfilling the criteria for CRPS Type I, with a combined WPI of 13%.

The MAC

1. As noted above, following the relevant procedures the matter was then referred to a Medical Assessor. This was Dr Kuru, an orthopaedic surgeon. It is necessary to go into some more detail of Dr Kuru's assessment to deal with some of the arguments of the Plaintiff.
2. Dr Kuru noted that the date of the injury was 7 September 2018 and the body part/system referred to him for examination was "right lower extremity (ankle)" for a WPI. The actual document containing the referral from the PIC to Dr Kuru was not provided.
3. The MAC indicates that the Plaintiff was examined by Dr Kuru on 19 September 2023. It then recites a history of the incident in which the Plaintiff was injured, and relevant treatment and surgeries undertaken by the Plaintiff following his injury. Dr Kuru noted that the Plaintiff: "… has undertaken sympathetic blocks and radiofrequency neurotomies of the saphenous nerve with a presumptive diagnosis of chronic regional pain syndrome."
4. Dr Kuru listed the Plaintiff's reported present symptoms as at the date of the examination as: "… severe pain inside on the medial aspect of his ankle with hypersensitivity. He is able to walk only 200 to 300 metres due to the pain in his ankle. He says he experiences disturbed sleep and night sweats. He has an uncontrollable tremor in his leg."
5. Under the heading "Finding on physical examination", Dr Kuru states as follows: "On examination, Mr Campbell walked holding his foot in an externally rotated position. Trendelenburg's Test was normal. Toe stance was not possible heel stance was. The circumference of the calves was 36 cm on the right and 37 cm on the left. There was a 13 cm well healed incision laterally over the fibula. Range of motion in the ankles was as follows: Movement Right Left Dorsiflexion 10° 20° Plantar flexion 30° 50° Inversion 10° 20° Eversion 5° 10°

Peripheral pulses were intact. There was no temperature or colour asymmetry between the feet. There were trophic changes of all of the nails bilaterally. There was no objective sensory disturbance to light touch. There was hypersensitivity medial and distal to the medial malleolus."

1. Under the heading "Reasons for assessment", Dr Kuru provides an opinion of a 4% WPI by reason of the right lower extremity (ankle). He stated that in making the assessment he had taken into account a review of the material provided to him and a detailed examination of the Plaintiff. He explained his calculations as followed: "The restricted range of motion in the ankle is assessed according to AMA 5, page 536, Table 17.11 and 17.12 and SIRA page 15, paragraph 3.17. For restricted range of motion an 11% lower extremity impairment was assessed. This converted according to AMA 5 from page 527, table 17.13 to a 4% whole person impairment."
2. Dr Kuru commented as follows on the other medical opinions and findings submitted by the parties and the reason why his opinion differed as follows: "With respect to the report of Dr Kleinman dated 3 November 2022, I did not observe the range of motion as described by Dr Kleinman, particularly "ankylosis in the ankle and 40 degrees of equinus." I did not assess impairment due to peripheral nerve injury. With respect to the report by Dr Hale dated 6 June 2023, I found a slightly increased range of motion in the ankle and have assessed a lower impairment. I did not make findings according to SIRA page 81, Table 17.1 to satisfy the criteria of a diagnosis of complex regional pain syndrome. Specifically, I did not detect evidence of temperature asymmetry or skin colour, nor oedema or sweating asymmetry." (emphasis added)

The MAP Review

1. The Plaintiff sought a review of the MAC. The MAP published its reasons for decision on 22 March 2024.
2. The MAP set out the relevant factual background. It noted that the body part that was listed in the referral for the Medical Assessor to assess was specified as "right lower extremity (ankle)".
3. The MAP then set out the relevant parts of the MAC which are referred to above. At [16] of the MAP reasons, the Appeal Panel said: "The Medical Assessor assessed the appellant had 4% WPI from his injury. His assessment was based on the restricted range of motion he found the appellant had of his right ankle. The Medical Assessor said that 'I did not make findings according to SIRA page 81, Table 17.1 to satisfy the criteria of a diagnosis of complex regional pain syndrome'. The Medical Assessor's reference to SIRA is a reference to the Guidelines. The Medical Assessor said that he did not make that diagnosis because he was unable to 'detect evidence of temperature asymmetry or skin colour, nor oedema or sweating asymmetry'." (emphasis added)
4. The MAP determined after a preliminary review that it was not necessary for the appellant to undergo a further medical examination. That was because it considered the material before it was sufficient to determine the appeal.
5. The Plaintiff submitted to the MAP that the Medical Assessor did not outline the necessary criteria for assessment of permanent impairment relating to CRPS and did not detail his findings from his examination with respect to those criteria. It was submitted that the Medical Assessor provided a partial summary which was not sufficient to test his conclusion. Further, the Plaintiff submitted that the Medical Assessor failed to make a finding in respect to his sensory deficit. He submitted that what the Medical Assessor had done in the MAC was not adequate to establish whether or not there was peripheral nerve injury as Associate Professor Kleinman and Dr Hale had determined. Finally, the Plaintiff submitted that the Medical Assessor failed to adequately explain his reasons for his assessment and failed to apply the relevant guidelines correctly.
6. The First Defendant submitted that the Medical Assessor did address the diagnostic criteria in Table 17.1 of the Guidelines. It submitted that the Medical Assessor's findings from his examination revealed that all of the criteria of Table 17.1 were not met. In terms of sensory deficit, the First Defendant submitted that it was clear that the Medical Assessor did not identify an objective sensory disservice sufficient to give rise to a sensory impairment.

The MAP Reasons

1. The MAP referred to paragraph 17.5 of the Guidelines which stipulated the criteria for a diagnosis of CRPS. Guideline 17.5 provides: "AMA5 Section 17.2m, 'Causalgia and complex regional pain syndrome (reflex sympathetic dystrophy)' (p 553), should not be used. AMA5 Table 16-16 (p 496) has been replaced by Table 17.1 in the Guidelines. Table 17.1 is used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis. It is important to exclude diagnoses that may mimic CRPS, such as disuse atrophy, unrecognised general medical problems, somatoform disorders and factitious disorder. Once the diagnosis is established, assess impairment as in AMA5."
2. The MAP noted those criteria are demanding and must be strictly applied, citing Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 at [41], cited with approval in Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125 at [30] and Turner v Trust T-Frame Timbers Pty Ltd [2021] NSWSC 1088 at [109]. The MAP observed that the reasoning of the Medical Assessor should demonstrate how the several criteria are or are not met when determining whether a worker meets the requirements for a diagnosis of CRPS.
3. At [30]-[31] of their reasons, the MAP set out the relevant Guidelines as follows: "For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment:

• the diagnosis is to be confirmed by criteria in Table 17.1.
• the diagnosis has been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement).
• the diagnosis has been verified by more than one examining physician.
• other possible diagnoses have been excluded.
• CRPS1 is to be assessed as follows: Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1). … Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 1. Continuing pain, which is disproportionate to any causal event. 2. Must report at least one symptom in each of the four following categories: Sensory: Reports of hyperaesthesiae and/or allodynia. Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry. Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry. Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes. 3. Must display at least one sign* at time of evaluation in all of the following four categories: Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement). Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes. Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry. Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). 4. There is no other diagnosis that better explains the signs and symptoms. * A sign is included only if it is observed and documented at the time of the impairment evaluation."

1. The MAP's reasons for upholding the Medical Assessor's finding that he could not confirm the Plaintiff's diagnosis of CRPS are as follows: "[33] The Medical Assessor in this case did not specifically address each criterion. The Medical Assessor did not when describing the appellant's present symptoms detail whether the appellant reported experiencing or not experiencing each of the symptoms listed in section 2 of Table 17.1 Further the findings the Medical Assessor recorded with respect to the first bullet point of section 3 of Table 17.1, specifically whether there was evidence of hyperalgesia and/or allodynia, were ambiguous. That is the Medical Assessor found hypersensitivity medial and distal to the medial malleolus of the appellant's right ankle but also said he found no objective sensory disturbance to light touch. [34] The Medical Assessor also did not expressly indicate that the diagnosis of CRPS had been present for at least one year, and whether the diagnosis had been verified by more than one examining physician. The evidence before the Medical Assessor nevertheless established these criteria had been met. [35] The Medical Assessor did not exclude other possible diagnoses. [36] Irrespective however of the Medical Assessor not positively identifying whether all the criteria specified within paragraph 17.5 of the Guidelines had been met, the findings that the Medical Assessor did expressly record in the MAC were sufficient to determine that a diagnosis of CRPS could not be confirmed. This is because all the criteria of part 3 of Table 17.1 were not met. Part 3 of Table 17.1 requires at least one sign of each of the four categories listed within that part to be present. The Medical Assessor clearly detailed in the MAC that he found the appellant did not have temperature asymmetry or asymmetry of skin colour, and hence there was no vasomotor sign displayed by the appellant on examination. Further the Medical Assessor expressly said that he found the appellant had no oedema or sweating asymmetry and hence the appellant did not exhibit the sign of sudomotor/oedema at examination. [37] Consequently, the first of the dot point of the matters listed paragraph 17.5 of the Guidelines could not be made. That is a diagnosis of CRPS could not be made in accordance with the criteria in Table 17.1."
2. With respect to the issue of the Medical Assessor's observations of asymmetry of temperature, sweating and colour, the MAP noted that the assessment of the Medical Assessor was an administrative task. In such cases it said that there was a presumption of regularity, presuming that the Medical Assessor had attended to all matters necessary to undertake the task in assessing the worker's permanent impairment, citing Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 ("Bojko") at [36]; Jones v the Registrar WCC [2010] NSWSC 481 at [50]. The MAP held that it was likely that the Medical Assessor would have established from his observation of the appellant during his examination that the appellant did not exhibit asymmetry of temperature, sweating or colour and did not present with an oedema. In any event, it held the appellant had not pointed to any manner that rebutted the presumption of regularity.

The Grounds of Review

1. The "grounds of appeal" (which I take to be grounds for review of the MAP decision set out in the summons) are listed as: 1. The statement of reasons and certificate issued by the Third Defendant, constituted by the Second Defendant on 22 March 2024 contains jurisdictional error and error on the face of the record. 2. The [MAP] erred in failing to determine the [MAC] was based on incorrect criteria and contained a demonstrable error, such error being a misunderstanding of its statutory function and a failure to apply itself to the question to be decided: 1. The [MAP] failed to determine that sensory impairment should be combined with the loss of range of movement under Table 17-2 to determine WPI; 2. The [MAP] failed to determine that the Medical Assessor had provided insufficient reasoning in [the MAC]. 1. That the [MAP] erred in failing to conduct an examination of the Plaintiff, having found that the findings on sensory deficit by the Medical Assessor were ambiguous, such a decision being unreasonable or illogical. 2. The [MAP] failed to have regard to the Plaintiff's submissions. 3. The [MAP] erred in finding that a "presumption of regularity" existed in respect to Medical Assessments. 4. The [MAP] failed to give sufficient reasons.
2. In the Plaintiff's further written submissions dated 6 August 2024 at [17], the bases of review as to why the MAP was in error are stated to be: 1. Failure to determine that sensory impairment could be added to loss of range of movement under Table 17-2 (Ground 2(a) in the summons); 2. Failure to determine that the Medical Assessor provided insufficient reasons for his findings (Ground 2(b) in the summons) (There is a separate but allied ground that the MAP failed to give sufficient reasons (Ground 6 in the summons)); 3. Failure to conduct an examination of the Plaintiff (Ground 3 in the summons); and 4. Failure to have regard to the Plaintiff's submissions (Ground 4 in the summons).
3. No submissions were addressed to Ground 5 in the summons.

General Legal Principles

1. The central issue is whether the Appeal Panel's decision conforms to law. The Court is not empowered to embark on a merits review: see e.g. Henderson v Canterbury Hurlstone Park RSL Club Ltd [2024] NSWSC 473 at [15] citing Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21.
2. The exercise of judicial review is also subject to a threshold of materiality: see e.g. Insurance Australia Ltd (t/as NRMA Insurance Ltd) v Al-Tabaibeh [2022] NSWSC 324 at [167] citing Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 ("SZMTA") at [45]-[46] per Bell, Gageler and Keane JJ. As Kirk JA observed in Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 at [50] (Meagher JA and Simpson AJA agreeing): "Making out legal error in the decision of the presidential member will not necessarily lead to the decision being overturned. Section 353(2) of the WIM Act provides that this Court may then remit the matter and may make such other orders in relation to the appeal as it thinks fit. The powers are discretionary. They will not in general be exercised unless the error is material: see, analogously, Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; Melino v Roads and Maritime Services [2018] NSWCA 251; (2018) 98 NSWLR 625 at [52]. Materiality involves considering whether there is a realistic possibility that the error could have made a difference to the result. That understanding is consistent with the requirement for materiality in establishing jurisdictional error: eg MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2]. It also is consistent with common law principle in relation to ordering new trials: Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [27]-[28]; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [7]."

Ground 2: The MAP erred in failing to determine the MAC was based on incorrect criteria

Legal Principles

1. Section 327(3)(c) of the WIM provides that a party to a medical dispute may appeal against a medical assessment on the ground that "the assessment was made on the basis of incorrect criteria".
2. This concept was considered in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284. The principle which emerges from that case was summarised by Mason P (McColl and Bell JJA agreeing) in Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88, at [40]-[41]: "The expression 'incorrect criteria' is undefined in the Act. In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister's Second Reading speech to the effect that s 327(3)(c) was designed to cover circumstances where the [WorkCover] Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the 'criteria' upon which assessment is to be based are to be found in any relevant guides including guides issued by WorkCover. At [60] his Honour observed that this view drew support from the requirement in s 322(1) that the assessment is to be made 'in accordance with the WorkCover Guidelines'. The Chief Judge's decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372). Basten JA, with whose reasons McColl JA agreed said (at 391[95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be 'demonstrable errors' within s 327(3)(d), they would not usually satisfy the 'incorrect criteria' ground. His Honour observed there that the latter ground: 'must refer to such matters as the tests set out in the Guidelines, where they are applicable'."
3. This position was reiterated more recently by Chen J, in Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38, at [43]: "In relation to the ground of appeal that the assessment was made on the basis of incorrect criteria (s 327(2)(c)), it has been held that this ground 'must refer to such matters as the tests set out in the Guidelines, where they are applicable': Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284 at [95]; Pitsonis v Registrar of the Workers Compensation Commission & Anor (2008) 73 NSWLR 366; [2008] NSWCA 88 at [41]-[42]. In short, in light of the fact that the assessment of impairment is required to be in accordance with the PI Guidelines (s 322(1) of the WIM Act), the ground refers to an incorrect application of the fourth edition of those guidelines or AMA 5 (where picked up by the PI Guidelines)."

Plaintiff's Submissions

1. The Plaintiff submits that the Medical Assessor was correct to consider other methods of assessment in circumstances where CRPS was not diagnosed. However, the Plaintiff submits the MAP was wrong to conclude that there was no error in the MAC when the Medical Assessor only assessed WIP based on the range of movement impairment and not in combination with sensory impairment. This was particularly so, it was submitted, when the MAP considered that the Medical Assessor's assessment as to whether the Plaintiff suffered from sensory impairment was ambiguous.
2. In circumstances where the MAP considered that the Medical Assessor's reasons were ambiguous, the Plaintiff submits that the MAP needed to investigate this ambiguity further. It submitted such investigations were not made, because at [39] of their reasons, the MAP determined that Table 17-2 did not allow the sensory impairment to be combined with loss of range of motion.
3. If sensory impairment was found, the Plaintiff submitted this should have been added to the impairment of the loss of range of motion.
4. The Plaintiff therefore submitted that the failure of the MAC to apply Table 17-2 properly, and the MAP's subsequent approval of this, amounts to the assessment of impairment being based on incorrect criteria.
5. It submitted that the only way for this to be resolved was by having the Plaintiff undertake another medical assessment, as the Medical Assessor failed to assess the Plaintiff's sensory impairment.

First Defendant's Submissions

1. The First Defendant submitted that in circumstances where the Medical Assessor found no impairment due to sensory impairment, the Plaintiff's claim that sensory impairment should be added to loss of range of motion under Table 17-2 of AMA 5 is incorrect. This is because as there was no peripheral nerve injury impairment found, there was nothing to be added or combined under Table 17-2 in any event. It noted that there had never been a diagnosis of peripheral nerve injury by any of the doctors.

Determination

1. I do not accept the Plaintiff's submissions that there was an incorrect application of the criteria.
2. Insofar as the MAP found parts of the MAC "ambiguous", that was in the context of them considering whether the Medical Assessor had properly applied the criteria in Table 17.1 for a diagnosis of CRPS. Section 3 of that Table lists as part of the criteria for CRPS that the claimant must display at least one sign at the time of evaluation in all of the four categories listed. The first of those categories is: "Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement)."
3. At [33] of its reasons, in listing where the Medical Assessor did not address each criterion, the MAP said: "…Further the findings the Medical Assessor recorded with respect to the first bullet point of section 3 of Table 17.1, specifically whether there was evidence of hyperalgesia and/or allodynia, were ambiguous. That is the Medical Assessor found hypersensitivity medial and distal to the medial malleolus of the appellant's right ankle but also said he found no objective sensory disturbance to light touch."
4. The MAP then referred to several other matters the Medical Assessor did not set out in the MAC that were required (see [33]-[35] of the MAP reasons). I have set these paragraphs out at [44] above. However, those omissions by the Medical Assessor were not relevant to the Medical Assessor's failure to make a diagnosis of CRPS, the validity of the MAC or his application of the criteria. This is because, as the MAP said at [36] of its reasons, irrespective of the Medical Assessor not positively identifying whether all of the criteria had been met, the findings that the Medical Assessor did expressly record were sufficient to determine the diagnosis of CRPS could not be confirmed. The Medical Assessor found on examination of the Plaintiff that he did not have any temperature asymmetry or asymmetry of skin colour. Hence the Medical Assessor found that no vasomotor sign was displayed by the Plaintiff on examination. Further, the Medical Assessor found that the Plaintiff had no oedema or sweating asymmetry, thus no sign of sudomotor/oedema on examination.
5. For a diagnosis of CRPS to be made, all of the signs in section 3 of Table 17.1 must be present on examination. An absence of any one of those signs is fatal to a diagnosis of CRPS - see Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 at [25]. The ambiguity in the Medical Assessor's findings as to evidence of hyperalgesia and/or allodynia were thus immaterial to the finding that CRPS could not be confirmed. Even if such sensory signs had been shown by the Plaintiff on examination, the findings of the Medical Assessor that the Plaintiff did not have signs of vasomotor or sudomotor/oedema meant a diagnosis of CRPS could not be made.
6. I also do not accept that the Plaintiff has established that the MAP erred in failing to find that the sensory impairment should have been combined with the range of movement impairment as required by Table 17-2 of AMA 5 to assess the Plaintiff's WPI.
7. First, the Plaintiff submitted that at [39] of its reasons the MAP "considered that Table 17-2 did not allow the impairment for sensory impairment" to be combined with loss of range of movement. The MAP did not make such a finding. The MAP found that the Medical Assessor was correct to adopt the restricted range of motion of the Plaintiff's right ankle to assess his WPI. It stated "that was the most appropriate method". That being the case, the MAP said the Medical Assessor was correct in accordance with Table 17-2 of AMA 5 not to combine any impairment due to peripheral nerve injury with the range of movement impairment to reach the assessed WPI. It did not find that the table did not allow that combination.
8. Table 17-2 AMA-5 is as follows: "After all potentially impairing conditions have been identified and the correct ratings recorded, the evaluator should select the clinically most appropriate (ie, most specific) method(s) and record the estimated impairment for each. The cross-usage chart (Table 17-2) indicates which methods and resulting impairment ratings may be combined. It is the responsibility of the evaluating physician to explain in writing why a particular method(s) to assign the impairment rating was chosen. When uncertain about which method to choose, the evaluator should calculate the impairment using different alternatives and choose the method or combination of methods that gives the most clinically accurate impairment rating. Limb Length Discrepancy Gait Derangement Muscle Atrophy Muscle Strength ROM Ankylosis Arthritis (DJD) Amputation Diagnosis-Based Estimates (DBE) Skin Loss Peripheral Nerve Injury Complex Regional Pain Syndrome (CRPS) Vascular Limb Length Discrepancy X X Gait Derangement X X X X X X X X X X X Muscle Atrophy X X X X X X X X Muscle Strength X X X X X X 0 ROM Ankylosis X X X X X 0 Arthritis (DJD) X X X X Amputation X X X X Diagnosis-Based Estimates (DBE) X X X X Skin Loss X Peripheral Nerve Injury X X X X Complex Regional Pain Syndrome (CRPS) X X 0 0 X X Vascular X X

X= Do not use these methods together for evaluating a single impairment. 0= See specific instructions for CRPS of the lower extremity. Typically, one method will adequately characterize the impairment and its impact on the ability to perform ADL. In some cases, however, more than one method needs to be used to accurately assess all features of the impairment. When more than one rating method is used, the individual impairment ratings are combined using the Combined Values Chart..."

1. It can be seen from the chapeau to the table that after all potentially impairing conditions have been evaluated, the Medical Assessor should select the clinically most appropriate method(s) of impairment and record the estimated impairment for each. The table indicates which impairment ratings may be combined. It can be seen that range of movement ankylosis method may be combined with peripheral nerve injury method.
2. The passage below the table indicates that if more than one method of assessment of the person's impairment needs to be used, then the individual impairment ratings should be combined.
3. In his report of 3 November 2022 in which he assessed the Plaintiff's WPI, Associate Professor Kleinman, as part of his assessment, said: "Using Chapter 17, Table 552 [sic.] [Table 17.73 at page 552], there is no specific impairment for the saphenous nerve but the equivalent nerve would be the sural nerve and complete dysaesthesia in the 5% lower extremity impairment."
4. In the present case, the Medical Assessor stated that in contrast to Associate Professor Kleinman's report of 3 November 2022, he "did not assess impairment due to peripheral nerve injury". The Plaintiff submitted this meant that the Medical Assessor was recording he did not undertake an assessment of peripheral nerve injury. I do not agree with that reading of the MAC. Rather, I read that phrase coming as it did in the part of the report when he was referring to and contrasting the report of Associate Professor Kleinman, as meaning that on his examination of the Plaintiff he did not observe impairment due to peripheral nerve injury. On this basis there was no peripheral nerve injury impairment to combine with the ROM ankylosis impairment.
5. At [39] of its reasons, the MAP noted that the Medical Assessor had been unable to confirm a diagnosis of CRPS. The method of impairment chosen by the Medical Assessor was range of movement. There being no peripheral neve impairment, the MAP stated the Medical Assessor was correct not to combine sensory impairment in accordance with Table 17-2. When understood in the context of the Medical Assessor's finding that there was no peripheral nerve injury, there was no other method of impairment to combine with the range of motion impairment. I see no error of the kind asserted by the Plaintiff in the conclusion of the MAP in respect to the application of Table 17-2.
6. Second, insofar as the Plaintiff submitted that the MAP's finding that there was ambiguity in the Medical Assessor's findings about evidence of hyperalgesia and/or allodynia meant that the MAP should have required another medical assessment of the Plaintiff, I do not agree. As I have observed, the comment about ambiguity was made in the specific context of the possible diagnosis of CRPS. Because of the absence of all signs required for such a diagnosis, the ambiguity in the Medical Assessor's findings as to those matters was immaterial to whether that diagnosis could be confirmed.
7. Additionally, in any event, I have found that the Medical Assessor on his examination of the Plaintiff did not observe any peripheral nerve injury, in contrast to the findings of Associate Professor Kleinman. That is so despite his observations which the MAP described as containing an ambiguity. Despite that description, the MAP did not feel it was necessary to require a further examination of the Plaintiff, nor did they consider that the ambiguity meant that there should be another method of impairment, over and above the range of motion impairment method, used to assess the Plaintiff's WPI.
8. The Plaintiff also referred to paragraph 1.9 and 3.34 of the Guidelines in support of his argument that there should have been a combination of the sensory deficits/impairments with the range of movement impairment to assess the Plaintiff's WPI. Those paragraphs provide: "[1.9] The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant's permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. (This does not apply to gait derangement - see paragraphs 3.5 and 3.10 in the Guidelines). … [3.34] Peripheral nerve injury impairments can be combined with other impairments, but not those for gait derangement, muscle atrophy, muscle strength or complex regional pain syndrome, as shown in AMA5 Table 17-2 (p 526). Motor and sensory impairments given in Table 17-37 are for complete loss of function and assessors must still use Table 16-10 and 16-11 in association with Table 17-37."
9. I do not accept these paragraphs alter the position. That is because, as I have said, the Medical Assessor found no peripheral nerve injury. There was thus nothing to combine with the range of motion impairment.
10. In my opinion, the Plaintiff has not demonstrated a reason for the MAP to require a further medical examination of the Plaintiff in respect to any sensory deficits, as no observations of peripheral nerve injury were made by the Medical Assessor.
11. I would not uphold Ground 2(a).

Ground 2(b): Failure of MAP to determine insufficient reasons in MAC

Plaintiff's submissions

1. The Plaintiff submitted that the MAP accepted the MAC was deficient in a number of key areas, outlined in [43] of their submissions. These are: 1. Not addressing each criteria for CRPS; 2. Not detailing each of the symptoms experienced or not experienced by the Plaintiff outlined in section 2 of Table 17.1; 3. Ambiguity as to certain findings; 4. The Medical Assessor not indicating whether the diagnosis had been present for one year; 5. Not indicating whether the diagnosis had been verified by more than one examining physician; and, 6. Not excluding other possible diagnosis.
2. The Plaintiff submitted that Guidelines 1.47 and 1.48 require a medical report to provide a rationale consistent with the methodology and content of the Guidelines. The Plaintiff submitted that the Medical Assessor gave no methodology as to the assessment of CRPS, the 'key findings' were not presented and the criteria used to make the relevant findings were not properly discussed. As such, the Plaintiff submitted he could not properly determine why he had been unsuccessful.
3. In such circumstances, the Plaintiff submits the MAP was in error to determine that the reasons provided in the MAC were adequate.

First Defendant's Submissions

1. The First Defendant submits that the balance of the Plaintiff's submissions on this issue involve, contrary to authority, a hypercritical approach to the Panel's reasons.
2. The First Defendant submitted that the findings of the Medical Assessor of the absence of one of the required signs in Section 3 of Table 17.1 was fatal to the diagnosis of CRPS. This was confirmed by the MAP in [36]-[37] of its reasons following a consideration of the findings of the Medical Assessor. In such circumstances, the First Defendant submitted that the threshold of materiality has not been established in relation to this ground.

Determination

1. I have already dealt with the substance of this ground above. I do not accept the matters identified by the Plaintiff show an error on the part of the MAP to find the MAC was deficient as to the reasons for its assessment of the WPI of the Plaintiff.
2. The omissions of the Medical Assessor identified by the MAP were in the context of him considering whether the Plaintiff had CRPS. For the reasons identified above, once one of the signs required to be present was not found by the Medical Assessor on his examination of the Plaintiff, this was fatal to the diagnosis of CRPS. The omissions by the Medical Assessor to do all of the things required by the criteria have no bearing on his conclusion as to the diagnosis of CRPS. Once he had recorded the absence of one (or more) of the signs required to be present for a diagnosis of CRPS to be made, it did not matter whether he had failed to fulfill all the other requirements of the criteria. For example, the failure to exclude other diagnosis is irrelevant as he did not diagnose CRPS. The failure to indicate whether the diagnosis had been present for one year did not arise as the diagnosis could not be confirmed on the day of assessment.
3. The fact that the criteria in paragraph 17.5 of the Guidelines are demanding and must be strictly applied - see Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 at [41], cited with approval in Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125 and Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC 1088 - does not alter my conclusion. Once one of the required signs for a diagnosis of CRPS to be made is absent, it is immaterial that other parts of the criteria were not strictly followed.
4. The Plaintiff also submitted more generally that the Medical Assessor's report had other errors, including a lack of sufficient reasoning and a lack of consideration of key details. For example, the Plaintiff submitted that no details are given as to what the Medical Assessor during his examination of the Plaintiff did to justify that he did not detect evidence of temperature asymmetry, shin colour, oedema or sweating. Counsel for the Plaintiff submitted that the MAC does not allow the Plaintiff to understand how the Medical Assessor made those observations. He submitted the MAP should have found the MAC deficient in this regard.
5. I do not accept the Plaintiff's submissions. As the MAP said, at [38] of its reasons, it is likely (indeed I would infer it as a fact) that the Medical Assessor established these matters from his observations of the Plaintiff during his examination. These matters were listed in the MAC under the heading "Findings On Physical Examination". There is a presumption of regularity to the administrative action of the Medical Assessor: Bojko at [36]. The presumption that he did all things necessary for the exercise of the task he had would include a presumption that he conducted a physical examination of the Plaintiff.
6. I do not accept it is necessary for the MAC to set out in detail the exact steps taken during the examination by which the recorded findings were observed. As long as the Medical Assessor's findings from the examination are set out in a manner which can be understood, then that is sufficient. The Plaintiff's submissions involve a hyper-critical approach to the reasons of the MAC (and the MAP in failing to find error in this regard) and should be rejected.
7. There is no error in the MAP's findings in this regard and I would reject this ground.

Ground 3: That the MAP erred in failing to conduct an examination of the Plaintiff

Legal Principles

1. The Plaintiff submitted that he should have been referred by the MAP for medical examination.
2. The power to arrange medical examinations for applicants is derived from r 128(3) of the Personal Injury Commission Rules 2021 ("the PIC rules"). This allows arrangements for the examination to be conducted in person, by telephone or audiovisual link, or by any other means determined by the President to be appropriate in the circumstances.
3. The MAP can determine its own procedures in accordance with r 128(1) of the PIC rules. It can determine the proceedings solely on the basis of the written materials if it considers that appropriate or it can require another examination of the applicant.

Plaintiff's Submissions

1. The Plaintiff says that the MAP should have conducted an examination of the Plaintiff for two primary reasons.
2. Firstly, the Plaintiff submitted that the MAP acknowledged ambiguity in the Medical Assessor's determination of whether sensory impairment was present. In such circumstances, the Plaintiff submitted the MAP failed in not investigating this ambiguity through undertaking its own medical assessment.
3. Secondly, the Plaintiff submitted that the reasoning of the Medical Assessor in its assessment of CRPS was inadequate, lacking proper explanation and presentation. In such circumstances, the Plaintiff submitted that it is not permissible for the MAP to 'fill the gaps' in the reasoning of the Medical Assessor, and as such the MAP should have conducted an examination of the Plaintiff themselves.

First Defendant's Submissions

1. The First Defendant submitted that r 128 of the PIC Rules confirms that the MAP can determine the procedures in which they are to conduct the relevant proceedings. Relevantly, this includes determining the proceedings solely on the basis of a written examination and to arrange medical examinations for the proceedings.
2. The First Defendant referred to [17]-[18] of the MAP's written decision where it concluded that on review of the MAC, it was: "…not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel consider the material before it is sufficient to determine the appeal."
3. The First Defendant submitted there is no obligation or requirement for the MAP to arrange for further medical examinations of an applicant in circumstances where it deems the information it has to be sufficient. As such, it is submitted there was no requirement for the MAP to conduct its own assessment in the circumstances.
4. Further, the First Defendant submitted that in the context of the Medical Assessor not finding any impairment due to peripheral nerve injury, there was no reason for the MAP to have concluded its own assessment.

Determination

1. I have dealt with this issue in considering Ground 2(a) above. I accept the First Defendant's submissions and see no reviewable error in the MAP's failure to require the Plaintiff to have a further medical examination.
2. I do not accept the Plaintiff's assertion that the decision of the MAP not to require a further medical examination of the Plaintiff was unreasonable or illogical. As I have found, it was made in the context where there had been no finding of peripheral nerve injury by the Medical Assessor and the ambiguities in the MAC were immaterial to the ultimate conclusion of the MAP.
3. I would reject this ground.

Ground 4: The MAP failed to have regard to the Plaintiff's submissions

Legal Principles

1. A failure to consider submissions may amount to a denial of procedural fairness or a constructive failure to exercise jurisdiction.
2. The relevant principles were summarised by Kirk JA (Meagher JA and Simpson AJA agreeing) in Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 (recently cited by Mitchelmore J in Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 at [51]-). His Honour stated, at [117]-[118]: "Constructive failure to exercise jurisdiction arises where a decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter. Here the appellants raise a form of constructive failure based on the alleged failure by the Member to respond to a critical argument. This is the variant of constructive failure of jurisdiction discussed by members of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. In that case Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker '[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts' was both a constructive failure to exercise jurisdiction and a failure to accord natural justice (at [23]-[25]). Kirby J similarly held that where, as in that case, the decision-maker's mistake 'amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way' (at [88])."
3. His Honour also quoted with approval the following passage from the reasons of Meagher JA in Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] (Payne and White JJA agreeing): " … a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2012] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his 'three key issues' were not stated and determined discretely. What he must show is that they raised 'substantial' (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant's claim …."

Plaintiff's Submissions

1. The Plaintiff submitted that his submissions to the MAP regarding the deficiencies of the examination of the Medical Assessor were not properly considered, and this amounts to an error in the form of failing to respond to a substantial and clearly articulated argument.
2. The submission said to have been made to the MAP that was not dealt with was with respect to the Medical Assessor's statement that he did not detect evidence of temperature or skin colour asymmetry. It was submitted the Medical Assessor only compared the Plaintiff's feet whereas the injury was to the Plaintiff's ankle. The Plaintiff referred to Associate Professor Kleinman's observations of colour change of the skin in various locations on the Plaintiff's body and that the right ankle felt cold whilst sweating. It was submitted that the MAC did not indicate whether the Medical Assessor considered the Plaintiff's ankle at all.
3. It is said the MAP failed to consider this submission.

First Defendant's Submissions

1. The First Defendant submits that the MAP had proper regard to the submissions of the Plaintiff. This is indicated, they submit, in [20]-[27] of the MAP's reasoning, in which they refer to the Plaintiff's submissions.

Determination

1. I do not accept the Plaintiff's submissions. It is tolerably clear from the MAP's reasons, including the paragraphs referred to by the First Defendant, that the MAP did consider the Plaintiff's submissions about the asserted deficiencies in the MAC. This included the asserted defects in the MAC going to the failure of the Medical Assessor to expose what he did and how he reached certain conclusions.
2. The MAP found, and I accept, that the conclusions listed by the Medical Assessor of the Plaintiff's condition were likely to have come from his physical examination of him. As the injury which gives rise to the impairment of the Plaintiff which was being assessed was to his right ankle, it can be inferred that the physical examination of the Plaintiff included an examination of his right ankle. So much can be seen from the Medical Assessor's findings on physical examination as to the range of motion of the ankles and the observations which follow, which must include observations of the Plaintiff's ankles and other parts if his lower body.
3. Whilst the MAP may not have referred to the Plaintiff's submission in direct terms, it dealt with the substance of that submission (and all the Plaintiff's submissions).
4. There was no failure by the MAP to consider any material matter raised by the Plaintiff. Hence there was no failure by the MAP to deal with any critical part of the Plaintiff's claims.
5. I would reject this ground.

Ground 5: The MAP erred in finding that a "presumption of regularity" existed in respect to medical assessments

Legal Principles

1. The presumption of regularity was described by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164: "Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office."
2. The authorities are clear that a presumption of regularity does apply to assessments done by Medical Assessors, see, for example, Bojko at [36].
3. No written or oral submissions were advanced in support of this ground as a separate ground. Nevertheless, I will deal with it briefly as it is a ground contained in the summons.

Determination

1. I am satisfied that the presumption of regularity does apply in respect to Medical Assessments undertaken by Medical Assessors such as Dr Kuru. This presumption would include a presumption that Dr Kuru did all things necessary to perform the administrative tasks of the medical assessment, including an appropriate physical examination of the body part(s) of the plaintiff referred for assessment. The plaintiff has not pointed to any matter to rebut the presumption. In any event, for the reasons previously given, I consider the MAC sets out the findings of the Medical Assessor from his examination of the Plaintiff.

Ground 6: MAP failed to give sufficient reasons for its decision

Legal Principles

1. It is established that the Appeal Panel has an implied statutory obligation to give reasons: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [117] per Basten JA, cited in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [42]; see also Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095 at [59] (Griffiths AJ) ("Kempe").
2. The Appeal Panel's reasons must 'fulfil a minimum legal standard', which does not require 'extensive' reasons, but which must nevertheless provide an explanation for the Appeal Panel's conclusions: Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [42] citing Vegan at [26].
3. A panel must give some explanation for its preference for one conclusion over another when more than one is open: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]. A failure to give adequate reasons is an error of law: Vegan at [130]; see also Secretary, Department of Communities and Justice v Hammond [2023] NSWSC 871 at [14].
4. In Lancaster at [45], Basten AJ (after summarising the effect of the High Court's decision in Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43) indicated that the purpose of reasons given by an appeal panel is: "…to ensure that, to the extent possible, any error of law in the reasoning of the Appea­­l Panel is revealed and may be the subject of an application for judicial review. However, as a practical matter, the Appeal Panel is likely to determine the question before it as a matter of expert medical opinion, the basis for which is peculiarly a matter of its special expertise and which will rarely give rise to any error of law, except on the basis that it is devoid of support in the material before the panel."
5. This statement was adopted by Griffiths AJ in Kempe at [60].
6. It is accepted that the reasons are not to be read "minutely and finely with an eye keenly attuned to the perception of error" or "scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272; and see also Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC 1088 at [101] and Henderson v Canterbury Hurlstone Park RSL Club Ltd [2024] NSWSC 473 at [98].
7. However, this does not permit gaps in the reasoning to be filled or reworked in order to provide reasoning which is not present: Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC 1088 at [101]. As stated by Hamill J in Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216; 67 MVR 601 at [47], citing SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]: "It is one thing to give a 'beneficial construction' to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law…".

Plaintiff's Submissions

1. I have dealt with much of this issue for Ground 2(b) above.
2. The Plaintiff submitted that the result of the Medical Assessor's findings were that the Plaintiff could not properly determine why the diagnosis of CRPS had been unsuccessful. The Plaintiff submitted it was an error on the part of the MAP not to address Table 17.1 and that the mere reference to the symptoms addressed in the four requirements of the Table were insufficient.
3. The Plaintiff submitted the MAP's reasons were deficient in that it cannot be discerned from [39] of the MAP's reasons why it concluded that the Medical Assessor was correct in adopting the restricted range of motion impairment to assess his WPI. It was submitted it is not clear from that paragraph what was meant when the MAP said that given "the nature of the appellant's injury and its effect" on him, that was the most appropriate method. It was submitted this does not appropriately expose the reasoning of the MAP in accepting that the range of movement method was the most appropriate.

First Defendant's Submissions

1. The First Defendant submits that the MAP gave adequate and appropriate reasons for its decision.
2. At [33] of its decision, the MAP acknowledges the Medical Assessor did not specifically address each criterion of the CRPS guideline. However, as has been stated above, the MAP concluded this is inconsequential as it was clear the Guidelines could not be satisfied given the Medical Assessor's findings.
3. The First Defendant submitted that the Plaintiff's approach to the MAP's reasons was a hypercritical approach which is contrary to authority and ignores the presumption of regularity: Bojko.. In these circumstances, the First Defendant says adequate reasons were given as to the MAP's decision.

Determination

1. I do not accept the Plaintiff's submissions. I agree with the First Defendant that the Plaintiff's criticisms of the MAP's reasons are hyper-critical. I have dealt with the criticisms about the failures of the Medical Assessor to apply every criterion from Table 17.1 and the MAP's consideration of those criticisms. There is no substance to the Plaintiff's complaint that the MAP's reasons in this regard are inadequate.
2. The same conclusion must be reached with respect to the Plaintiff's criticisms of [39] of the MAP's reasons. In my opinion, it is clear reading the MAP's reasons as a whole, including the relevant factual background and consideration of the MAC as a whole, that the Plaintiff is able to understand what was meant when the MAP said that given the nature of his injury and its effect on him, the range of movement method of assessment was the most appropriate by which his WPI ought be assessed. This was in the context of the Medical Assessor not having assessed (that is, not having found on examination of the Plaintiff) any peripheral nerve damage. As I have found above, the MAP was not in error to conclude that it was not necessary for the Medical Assessor to combine any sensory impairment due to peripheral nerve injury with the range of movement impairment. Indeed, on the finding of the Medical Assessor that there was no peripheral nerve injury, no other conclusion was open.
3. I reject this ground.

Orders

1. None of the grounds of review have been established by the Plaintiff.
2. The summons should be dismissed.
3. There appears to be no reason why costs should not follow the event.
4. The orders I therefore make are: 1. The summons is dismissed; 2. The Plaintiff is to pay the First Defendant's costs.

Amendments 24 October 2024 - Changes to numbering of grounds DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 October 2024