Workers Compensation Nominal Insurer v Bui

10The sum of the scores allocated by Dr Gertler was 20, while the median class score was 3. According to the conversion table, Ms Bui was accordingly assessed to have a whole body impairment of 26 per cent.

Application to appeal to the Medical Appeal Panel 11Dr Gertler's assessment was carried out on 13 May 2013. He gave his medical assessment certificate on 23 May 2013. 12Surveillance was carried out on Ms Bui between 8 June 2013 and 16 June 2013. On Friday 14 June 2013, the investigator observed Ms Bui leaving home and catching a bus on her own. The investigator was unable to follow the bus and lost track of Ms Bui at that point. 13On Saturday 15 June 2013, the investigator saw Ms Bui leave the house in a car with a male. They went to a restaurant in Cabramatta, after which Ms Bui went on her own to two bridal shops. In the second shop, she was seen to engage in a heated argument with a member of staff over the price of a bridal gown. Inquiries at the shop revealed that Ms Bui had been there on several occasions over the past two years asking to have gowns designed. The investigator's report states "however the sales never eventuate as the claimant does not marry". The investigator's report provided a summary of the activities and movements observed, as follows: Boarding a bus bound for Cabramatta; entering, alighting and travelling as a passenger in a motor vehicle; attending a restaurant in Cabramatta, with a male believed to be her fiancée (sic); sitting down to eat a meal with the male; smiling and chatting with the male; ordering a meal; listening to the male; paying the bill for the meal; asking restaurant staff for a 'doggie bag'; kissing the male goodbye; attending two bridal stores in Cabramatta; having a heated argument with sales staff in one of the stores; storming out of the store; issuing loud verbal threats to the salesperson; purchasing a train ticket at the Cabramatta Railway station; and waiting on the platform for a train. 14On 18 June 2013 the insurer lodged an application to appeal against Dr Gertler's decision. The grounds of appeal included the material obtained by the investigator, which was sought to be relied upon as "fresh evidence". There were two additional grounds of appeal but they do not arise in the present application and it is not necessary to consider them further. 15In respect of the additional information, the insurer made the following submission in support of the application to appeal (at page 35 of the court book): The history obtained by Dr Gertler is that she is unable to leave the house unaccompanied because of problems with anxiety and concentration. The applicant was observed to leave her home without family, travel by bus and train, travel as a passenger in a motor vehicle, attend a restaurant, smile, chat, eat a meal, attend to shopping, conversing with sales assistant, behave in a normal manner, all activities are inconsistent with the history provided to Dr Gertler. 16It was submitted on that basis that Dr Gertler had scored Ms Bui incorrectly on four of the PIRS scores (travel, social functioning, concentration and employability). The submissions in support of the application to appeal did not expressly address the other two PIRS scores (self care and social and recreational activities). 17In a further written submission dated 21 June 2013, the insurer requested that Ms Bui be re-examined by an accredited medical specialist who is a member of the Medical Appeal Panel. It was submitted that re-examination was necessary to enable a proper assessment of the worker's degree of whole person impairment resulting from the psychological injury. In particular, it was noted that Dr Gertler had taken a history that Ms Bui was unable to leave her house unaccompanied, whereas the additional information showed that not to be correct. 18Ms Bui opposed the application to appeal. In respect of the additional information, she submitted that the material was "non-probative in the required sense". The Medical Appeal Panel understood that to be a submission as to the reliability of that material rather than an objection to its admission into evidence. Ms Bui submitted alternatively that, in the event that the material was admitted, she should be examined by the Medical Appeal Panel so as to afford her the opportunity of giving an explanation and answering questions with respect to the surveillance report (page 64 of the court book). The notice of opposition also annexed a lengthy and articulate handwritten response which Ms Bui asked the Medical Appeal Panel to consider in the event that the matter was to be dealt with on the papers without her being further examined as requested.

Determination of the Medical Appeal Panel 19The Medical Appeal Panel published its determination on 17 October 2013. The Panel stated that it had determined it was not necessary for Ms Bui to undergo a further medical examination. On the basis of its understanding that Ms Bui did not oppose the admission of the surveillance material (which was perhaps generous to the insurer), the Panel admitted that material as fresh evidence pursuant to s 328(3) of the Act. 20Taking into account Ms Bui's statement in response, the Panel did not consider that the surveillance material was inconsistent with Dr Gertler's assessment on three of the PIRS scores raised in the application to appeal (social functioning, concentration and employability). 21The other PIRS score referred to in the insurer's application to appeal related to the area of "travel". The Panel noted that Dr Gertler had assessed impairment in that area as falling in class 3, stating that Ms Bui was: unable to leave home unless accompanied because of problems with anxiety and concentration. Can only leave home with family and even then, she is extremely fearful when doing so. 22The Panel noted that, according to the observations made by the investigator on 14 and 15 June 2013, Ms Bui has some ability to leave the home unaccompanied. Taking that additional material into account, the Panel reduced the PIRS score for travel to class 2. That in turn reduced the aggregate score from 20 to 19 but the median score remained the same, giving a whole person impairment of 24 per cent rather than 26 per cent as assessed by Dr Gertler. The Panel issued a new medical assessment certificate on that basis. As already noted, the effect of such an assessment is that it is conclusively presumed to be correct in any proceedings before a court or the Workers Compensation Commission as to the degree of permanent impairment.

Nature of the power exercised by the Medical Appeal Panel 23The insurer seeks to have the decision of the Medical Appeal Panel quashed, invoking the jurisdiction of this Court under s 69 of the Supreme Court Act 1970. The summons alleges six errors of law but does not specify whether those are alleged to amount to jurisdictional error or error of law on the face of the record. 24Some of the grounds of appeal make implicit assumptions as to the procedure required to be adopted by the Medical Appeal Panel. In order to test the correctness of those assumptions, it is necessary to consider the statutory framework within which the Panel operates. 25There is an express statutory right of appeal against a medical assessment made by an approved medical specialist. Just as the provisions relating to the assessment process are highly prescriptive, the right of appeal is closely constrained by the statute. Section 327(1) of the Workplace Injury Management and Workers Compensation Act provides that a party to a medical dispute may appeal against a medical assessment but only in respect of a matter that is appealable under that section and only on the grounds for appeal under the section. 26The grounds for appeal that may be relied upon are specified in s 327(3), as follows: (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. 27An appeal cannot be maintained as of right. An application to appeal must be made to the Registrar. Section 327(4) provides that the appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made, at least one of the grounds for appeal specified in s 327(3) "has been made out". 28That section previously provided that the appeal was not to proceed unless it appeared to the Registrar that "at least one of the grounds for appeal specified in subsection (3) exists". In Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [8], Handley JA took that expression to mean that the Registrar had to consider whether the ground, on its face, was "valid and apparently credible". 29The section was then amended to its present form. It seems likely that the amendment was intended to clarify the obscure reference to a ground of appeal that "exists" rather than to enlarge the power of the Registrar to prevent an appeal from proceeding. I would understand the current provision to mean that the Registrar must be satisfied in the terms suggested by Handley JA in Vegan, which would include a determination as to whether any of the proposed grounds falls within the constraints of s 327(1). 30The extent to which the discharge of the Registrar's function informs the scope of any subsequent appeal was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. No issue arises in the present case as to the consequences of the Registrar's decision but the decision in Siddik nonetheless provides a useful analysis of the nature of an appeal to the Panel. 31The procedure on an appeal that is allowed to proceed is governed by s 328 of the Act. An appeal is to be heard by an appeal panel constituted by two approved medical specialists and one arbitrator: s 328(1). 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: s 328(2). The section provides that the procedure on an appeal can be provided for in the WorkCover guidelines. 32Owing to the disparate nature of the grounds of appeal allowed under s 327(3), it is both difficult and potentially unhelpful to seek to classify the nature of the "appeal by way of review" allowed under s 328. As observed by Basten JA in Vegan at [84], the grounds permitted under the statute: do not clearly reflect distinctions found in other areas of the law, such as the distinction between law and merits, or between errors of principle and the application of relevant principles, or between jurisdictional and other errors. 33Some of the grounds contemplate an entitlement to have the assessment re-opened on the grounds of later events (deterioration of the worker's condition or the receipt of new information) regardless of error in the initial assessment. Others require the demonstration of error in the initial assessment (the application of incorrect criteria or the appearance of demonstrable error). 34The review allowed under s 328 is accordingly its own species of statutory appeal. Its intended flexibility is reflected in the WorkCover guidelines contemplated by s 328(2). The current guidelines were promulgated in October 2006. Clause 45 of the guidelines provides: The Appeal Panel may adopt any of the following procedures in accordance with the needs of the individual case: Preliminary review (in all matters) "On the papers" review Further medical examination by an approved medical specialist on the Appeal Panel Assessment hearing 35Clause 46 of the guidelines provides: Where the appeal panel determines a matter is not capable of determination on the papers, either with or without a further medical examination, an assessment hearing will be arranged. The appeal panel assessment hearing will be informal and non-legalistic, and will afford the parties a full opportunity to present oral submissions in support of their claims. The assessment hearing is non-adversarial and in most cases no evidence will be taken or cross-examination permitted. A party is entitled to be represented at the assessment and may choose to be accompanied by a person (including but not limited to a legal advisor or agent) to assist in the presentation of their case. The assessment will be sound recorded and a copy of the recording will be available to the parties on request. The parties may seek clarification of matters raised with the assistance of the panel members. 36Implicitly, those guidelines contemplate the possibility, in an appropriate case, of determining an appeal on the papers and on the strength of exactly the same material as was before the approved medical specialist. 37The degree of procedural autonomy granted to the Panel under the guidelines was considered recently by the Court of Appeal in Galluzzo v Little [2013] NSWCA 116. Barrett JA gave the main judgment in that case. His Honour undertook a careful analysis of the relevant provisions in the context of considering a ground of appeal that the Panel had erred in refusing to conduct an oral hearing. 38In considering the provisions of the guidelines, Barrett JA approved the remarks of Studdert J in Estate of Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235. At the time of the decision in Brockmann, the guidelines were in slightly different terms but the Court in Galluzzo evidently did not think anything turned on the difference. 39The remarks of Studdert J in Brockmann (at [57] to [58]), approved in Galluzo, were as follows: In context, I do not consider that s 328(1) of the WIMWC Act compels the conduct of an adversarial hearing. An appeal is to be 'heard' by a three person panel, but the Practice Direction and, more importantly, the Guidelines contemplate that the Appeal Panel may determine how the Appeal is to proceed. Under paragraph 43 of the Guidelines, the Appeal Panel is authorised either to set a date for an assessment hearing, or to decide the appeal on the papers, without further involvement from the parties. The Guidelines do not specifically mandate an assessment hearing if the Panel decides that there ought to be a medical examination. Nor do I consider s 328(4) out to be construed as making an assessment hearing obligatory. What the subsection does is to entitle an injured worker to be accompanied to an Appeal Panel hearing, if such a hearing is conducted. 40The decision in Galluzzo holds that it is for the Medical Appeal Panel to decide which of the several procedures contemplated in the guidelines is to be adopted in the circumstances of any individual case. The decision further notes that the general expectation is that there will be a determination on the papers (at [71] to [72]). Clause 46 of the expressly guidelines contemplates that there may be a determination on the papers either with or without a further medical examination. 41It should be noted, however, that Galluzzo was not a case in which fresh evidence was admitted by the Medical Appeal Panel. Similarly, the decision in Vegan was a case in which the additional evidence was rejected (see [93] of the judgment of the Court of Appeal), as was Siddik (see [25] of the judgment of the Court of Appeal). An appeal in which fresh evidence is admitted will plainly raise different procedural considerations from those arising in the case of, for example, an appeal based on demonstrable error in the relevant certificate.

Grounds of appeal 42The first ground of appeal is: The Medical Appeal Panel erred in law in taking into account Ms Bui's statement dated 8 July 2013 when it had not admitted it into evidence. 43This ground implicitly assumes that the Medical Appeal Panel is prohibited from taking material into account unless it has been formally admitted into evidence. 44It may be accepted that the Act expressly restricts the giving of "fresh evidence" or "evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against". Such evidence may not be given on an appeal unless it was not available to the party before the medical assessment and could not reasonably have been obtained before that assessment: see s 328(3) of the Act. To a degree, the strictness of that provision is at odds with the informal approach to the conduct of an assessment hearing allowed under clause 46 of the guidelines. But the purpose of the section is clear. Its object is to promote finality. 45The surveillance evidence sought to be relied upon by the insurer was plainly fresh evidence (if it was anything), the period of surveillance having been after the date on which Dr Gertler assessed Ms Bui. The Medical Appeal Panel considered the terms of s 328(3) and resolved to admit that material as fresh evidence on the appeal (at [33] of the statement of reasons, page 76 of the court book). 46It is beyond dispute that, having admitted the fresh evidence relied upon by the insurer, the Medical Appeal Panel was obliged afford Ms Bui an opportunity to respond to that material as an aspect of procedural fairness. As already noted, both the insurer and Ms Bui had submitted that there ought to be a further medical examination. The insurer submitted that a re-examination was necessary to enable a proper assessment of Ms Bui's degree of whole person impairment having regard to the inconsistency between the investigator's observations and the history obtained by Dr Gertler that Ms Bui was unable to leave her house unaccompanied (page 54 of the court book). Ms Bui submitted that there ought to be an examination so as to afford her the opportunity of giving an explanation and answering any questions of the Medical Appeal Panel in respect of the surveillance report (page 64 of the court book). Her handwritten statement dated 8 July 2013 was relied upon in the alternative, in the event that the Medical Appeal Panel decided to deal with the appeal on the papers without further examination as requested. 47Neither party sought the opportunity to address the Medical Appeal Panel orally (see pages 31 and 60 of the court book). In that circumstance, it was highly likely that the appeal would be determined "on the papers", either with or without a further medical examination. 48The insurer does not suggest that the Medical Appeal Panel should in those circumstances have disregarded the handwritten statement. Rather, the contention is that it erred in law in taking the statement into account without having first made a determination to allow the evidence to be given in accordance with the provisions of s 328(3). That submission implicitly assumes that, when fresh evidence is admitted under that section, any evidence in response to that evidence can only be admitted if it is also "fresh evidence" or otherwise falls within the terms of the section. The submission also implicitly assumes the existence of a requirement that evidence on an appeal be formally "admitted" or else disregarded. 49It is clear that the Medical Appeal Panel did have regard to the statement. It formed the basis for the Panel's conclusion that the surveillance material was not inconsistent with Dr Gertler's assessment in the areas of social functioning, concentration and employability (see [38] of the statement of reasons at page 76 of the court book). The critical question is whether there is any legal requirement for the Medical Appeal Panel to "admit" material into evidence before taking it into account. I am not persuaded that the Medical Appeal Panel's powers are subject to the degree of formality assumed in the insurer's submissions on this issue. 50It is interesting in this context to note the terms of s 354 of the Act relating to "proceedings in any matter before the Commission". That section contains a series of provisions as to the way in which such proceedings are to be conducted, including that they are to be conducted "with as little formality and technicality as the proper consideration of the matter permits" and that "the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits" (subss (1) and (2)). 51The parties in the present case did not address the issue whether that provision governs an appeal heard by a Medical Appeal Panel. Such proceedings may well be regarded as being proceedings in a "matter before the Commission". 52A similar issue was touched on in Vegan, where Basten JA made passing reference to the question whether the Medical Appeal Panel "constituted" the Commission for the purpose of the Act. That is perhaps a different question from the question whether an appeal heard by a Medical Appeal Panel constitutes "proceedings in any matter before the Commission" for the purpose of s 354. In any event, his Honour noted that neither party had argued the issue in that case. His Honour raised the issue in passing, commenting on the potential operation of s 350 of the Act as a privative clause that might have the effect of expanding the Panel's power to make "a valid and unreviewable decision despite apparent error". The insurer has not been tempted by that judicial offering in the present case. It was not argued that the power to grant relief under s 69 of the Supreme Court Act is removed or confined in the case of a decision of the Medical Appeal Panel. 53In any event, whether or not an appeal determined by the Medical Appeal Panel is a proceeding in a "matter before the Commission" so as to attract the application of s 354, the outcome is the same, in my view. 54The insurer's application to rely upon the surveillance material was expressly governed by s 328(3). Having determined to allow that evidence to be given, the Panel was plainly obliged to afford Ms Bui an opportunity to respond to it. She had indicated her preference to respond in the forum of a further medical examination but had, alternatively, indicated that she was content for the Panel to have regard to her handwritten statement dated 8 July 2013 so as to enable the Panel to determine the matter on the papers. In circumstances where the Panel was plainly obliged to afford her an opportunity to respond to the fresh evidence in one form or another, I do not think it matters whether her statement was formally determined to be "fresh evidence" able to be given in accordance with s 328(3). It clearly qualified for admission under that section but I do not think the provisions that govern the procedure on appeal to a Medical Appeal Panel require it to make a formal determination in those terms. 55For those reasons, ground 1 must be rejected. 56Ground 3 is: The Medical Appeal Panel erred in law in failing to carry out a hearing de novo (including a further examination of the first defendant). 57The precise error alleged in that ground is obscure. The insurer's contentions outlined in part B of the summons reveal that the ground was drawn in terms intended to reflect certain remarks of McColl JA (with whom Mason P agreed) in Siddik. In particular, the insurer relied upon the following passages of her Honour's judgment at [96] to [97]: 96 However s 327 is not only an error-based jurisdiction. It also contemplates an appeal arising because of changed circumstances: either a deterioration of the worker's condition or the availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment): s 327(3)(a) and (b). While the power to receive further evidence is suggestive of a rehearing function (CDJ v VAJ (No 1)), the availability of that power to what might be classed as an administrative body is not determinative: Strange-Muir. 97 In such circumstances the Appeal Panel might be expected to review the MAC to determine whether the changed circumstances affect the conclusions the AMS reached. If it reaches that conclusion, then it must have the power to conduct the assessment anew, including, if necessary, undertaking an examination of the injured worker as contemplated by s 324. That appears to presume something in the nature of a hearing de novo, a proposition Basten JA found attractive in Vegan (at [85]). 58As I understand the insurer's argument, it appears to entail at least the following propositions: (a) that a "hearing de novo" is an identifiable procedure that may be adopted in the exercise of the power of the Medical Appeal Panel; (b) that, in the circumstances of this case, it was the only procedure allowed, as a matter of law. 59In my view, the first proposition is misconceived and the second is wrong, for the following reasons. 60The nature of the "review" allowed under s 328 has been considered in a number of decisions of the Court of Appeal but care must be taken in determining what principles emerge from those decisions. 61The passage from Siddik relied upon by the insurer (set out above) referred to a proposition stated by Basten JA in Vegan. Relevantly for present purposes, the principle for which Vegan stands as authority is that the Medical Appeal Panel has an implied statutory obligation to give reasons for its decisions. It was in that context that Basten JA considered the nature of an appeal to the Panel. 62It was argued in Vegan that elements of the statute give rise to express or implied limitations on the Panel's powers (as I read his Honour's judgment, those arguments appear to have been put in support of the contention that a decision of the Panel without proper reasons was beyond power). In that context, the employer argued that the use of the term "review" in section 328(2) of the Act precluded a hearing de novo, particularly considered together with the limitation on additional evidence in s 328(3) of the Act. Basten JA thought that analysis "tended to demonstrate the difficulty with too close a dissection of the statutory language" at [85]. By way of illustration of that view, his Honour gave the example of an appeal based on the ground of a deterioration of the worker's condition, which would be likely to entail fresh evidence "so that the assessment might well be by way of a hearing de novo". 63In Siddik, McColl JA began by observing that the consideration of the nature of the s 328 review undertaken by Basten JA in Vegan did not identify the nature of such a review "in a determinative manner": at [82]. After undertaking a detailed analysis of the issue, her Honour concluded (at [100]; Mason P agreeing at [1]): While a conclusion that an appeal by way of review may, depending on the circumstances, involve either a hearing de novo or a rehearing invokes a novel form of appeal, it ensures the legislature has created a flexible model which as I explain below assists the objectives of the legislature. In New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; (2003) 56 NSWLR 691 (at [103] - [104]) Hodgson JA (Santow JA agreeing) held that an appeal under s 15 of the Racing Appeals Tribunal Act 1983 involved both appeals of a de novo and rehearing nature. 64Giles JA did not consider it necessary in Siddik to determine the appeal by reference to an analysis of the nature of the appeal to the Medical Appeal Panel as an appeal strictly so-called, an appeal by way of rehearing or a hearing de novo. His Honour noted that the Appeal Panel had not in that case purported to conduct a rehearing regardless of error, but had found error in what the approved medical specialist had done: at [6]. 65The insurer's submissions on this issue seek to elevate the discussion in those earlier authorities as to the apparent power of the Medical Appeal Panel (in an appropriate case) to conduct a "hearing de novo" to a rule that qualifies the terms of the statute. Basten JA's reference in Vegan at [85] to an assessment by way of a hearing de novo (cited by McColl JA in Siddik at [97]) recognises the flexible range of procedures that might be adopted by the Panel in circumstances where a deterioration in the worker's condition or the availability of additional information persuades the Panel that it is appropriate to form its own assessment of the medical dispute rather than simply considering whether the assessment under appeal entailed error. In my view, it would be wrong to elevate his Honour's recognition of the prospect of a "hearing de novo" to a kind of fixed procedure within the power of the Panel, failure to adopt which might amount to error in law. Ultimately, as explained in Galluzzo, the statute permits the Medical Appeal Panel to decide which of the several procedures contemplated in the guidelines is to be adopted in the circumstances of any individual case. 66The focus of the oral submissions in support of this ground, which were put persuasively by Mr Dodd, was the Panel's determination that it was not necessary for Ms Bui to undergo a further medical examination. In the face of the apparent inconsistency between the lucid conduct observed by the investigator and the regressed state previously presented to a series of psychiatrists, the determination not to undertake a further medical examination might be regarded by a lawyer as a surprising outcome of the appeal. However, the Panel is specifically not composed of lawyers. The degree of autonomy conferred upon the Panel in its procedures must be taken to reflect Parliament's trust in the professional medical judgment of such a body. In my view, this Court should be slow to conclude that a determination of a Medical Appeal Panel not to undertake a further medical examination was beyond power or entailed legal error. 67However, it will be necessary to return to this issue in the context of ground 5, which alleges that the Panel did not give adequate reasons for its decision. 68Grounds 2, 4 and 6 each raise issues as to the Panel's consideration of the fresh evidence. Those grounds are as follows: 2 The Panel erred in law in considering the fresh evidence contained in the surveillance material was not inconsistent with the AMS assessment regarding all other categories of the PIRS assessment except for "Travel". 4 The Panel erred in law in failing to consider the effect of the fresh evidence on the whole of the first defendant's presentation to the AMS. 6 The Panel erred in law in limiting its use of the fresh evidence only to one category of assessment. 69Each of those grounds has the resonance of an invitation to undertake a review on the merits which, of course, is not open to this Court. 70Mr Dodd submitted that ground 2 was in the nature of a "Wednesbury" point, a reference to the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That is the seminal authority for proposition that, upon judicial review, an administrative decision may be quashed on the grounds that, although otherwise within jurisdiction, the decision is so unreasonable that no reasonable authority could ever have come to it. But the judgment of the Master of the Rolls (Lord Greene), with whom Somervell LJ and Singleton J agreed, stands equally as authority for the proposition that the Court must not exercise its power of review so as to supplant that entrusted by Parliament to a specialised authority. 71Whether the Panel's decision was unreasonable in the Wednesbury sense requires a consideration of the reasons given for its determination. Since the remaining ground of appeal challenges the adequacy of those reasons, it is appropriate to consider that ground first. 72Ground 5 alleges that the Medical Appeal Panel erred in law in failing to give any or any sufficient reasons for its decision. That ground was expanded in the contentions in part B of the summons in the following terms: The Panel failed to give any or any sufficient reasons why: (a) it decided that it was not necessary for the first defendant to undergo further examination when it had admitted as fresh evidence the surveillance report which was obviously inconsistent with the first defendant's presentation to the AMS and the bases for his assessments; (b) it decided that it was not necessary for the first defendant to undergo further examination when such further examination had been requested by both the plaintiff and the first defendant to deal with the material in the fresh evidence; (c) it considered that the fresh evidence in the surveillance material "taking into account the first defendant's statement", was not inconsistent with the AMS assessment in respect of other categories of the PIRS. 73It is established that the Medical Appeal Panel is subject to an implied statutory obligation to give reasons: Vegan at [117] per Basten JA, Handley and McColl JJA agreeing. Basten JA described the content of the obligation in the following terms (at [121] to [122]): 121 Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. 122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required. 74The Medical Appeal Panel accepted that the fresh evidence warranted their coming to a different conclusion from that reached by Dr Gertler in respect of the determination that the degree of impairment for the PIRS category "travel" fell into class 3. The basis for that conclusion was that, whereas Dr Gertler had concluded that Ms Bui was "unable to leave home unless accompanied because of problems with anxiety and concentration", the fresh evidence revealed that she had some capacity to leave home unaccompanied. 75As to the other PIRS categories, the Panel said (at [38]): The Panel has considered the surveillance material. The Panel does not consider that the material, taking into account the respondent's statement is inconsistent with the AMS's assessment in respect of social functioning, concentration, persistence and pace and employability. 76No further reasons were stated for reaching that conclusion. 77The difficulty is that the fresh evidence was plainly capable of informing at least two of the other PIRS categories. The reason for determining that Ms Bui fell into class 3 for "travel" included reference to her inability to leave home unaccompanied due to problems with anxiety and concentration. "Concentration" is the subject of a separate PIRS category. Further, the reason given by the AMS for determining that Ms Bui fell into class 5 for "employability" also referred to her inability to leave home unless unaccompanied. 78There may well be sound reasons of medical judgment for the Panel's conclusion that the fresh evidence warranted a revision in one category but not in any other category. The difficulty is that the Panel's statement of reasons does not explain that conclusion in a way that enables the losing party to understand why it was reached. 79It was submitted on behalf of Ms Bui that the Court must consider the reasons as a whole and must be astute not to parse and analyse them with an eye to error, citing the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30]. I am mindful of that caution. But in the present case, it is simply not possible to know what process of thinking or consideration of professional judgment led the Panel to the conclusion it reached. As acknowledged in Vegan, the reasons did not need not be extensive or to provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment. But they did have to meet the minimum requirement of explaining why, after considering the fresh evidence and Ms Bui's response, the Panel had determined to make its own assessment of the impact of her psychiatric disorder on her ability to travel (reaching a different conclusion from that reached by Dr Gertler) but to leave his assessment of other areas, expressed in some instances by reference to the same areas of dysfunction, undisturbed. 80The same difficulty arises in respect of the Panel's determination that it was not necessary for the worker to undergo a further medical examination. On that issue, the Panel said (at [8]): As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination. The appellant requested a further examination. The Panel considered the medical and other material before it and determined that a further medical examination would not assist in determining the issues in the appeal. 81Again, there may be sound reasons for reaching that professional judgment but none have been articulated in the statement of reasons. The fresh evidence was at least capable of calling into question Ms Bui's truthfulness in her presentation to Dr Gertler and other psychiatrists to whose assessments he had referred. The Panel was not compelled to reach that conclusion but the circumstances called for at least a brief articulation of the reasons for its not reaching that conclusion. 82Accordingly, with some reluctance and with due deference to the professional judgment of the Panel, I have reached the conclusion that the Panel's statement of reasons fails to comply with its implied statutory obligation recognised in the decision of the Court of Appeal in Vegan. 83In reaching that conclusion, I do not mean to intrude or pass comment on the outcome of the appeal before the Medical Appeal Panel. As I have already acknowledged, this Court must be astute not to supplant its own judgment for that of a specialised body to which Parliament has entrusted a specialised role. The difficulty lies, rather, in the failure of the statement of reasons to articulate the basis for the several professional judgments reached. 84In light of the conclusion I have reached on that issue, I do not consider it appropriate to determine grounds 2, 4 and 6. 85It follows that there is error on the face of the record and, accordingly, the discretion under s 69(3) of the Supreme Court Act to quash the decision is enlivened: see Vegan at [130]. There is no reason not to exercise that discretion in favour of the insurer. 86The insurer seeks an order that the proceedings be remitted to the Registrar of the Workers Compensation Commission "to refer to a new Medical Appeal Panel to determine the matter according to law". I do not think it is appropriate for me to constrain the Registrar's discretion in that way. Specifically, I am not persuaded that there is any reason the matter should not be remitted to the same Medical Appeal Panel. Conversely, if that is not administratively convenient, the Registrar may see fit to refer the appeal to a new Panel. Those should be matters entirely for the determination of the Registrar, whose discretion should not be constrained by this Court. 87For those reasons, I make the following orders: (1)That the decision of the Medical Appeal Panel given 17 October 2013 be set aside. (2)That the proceedings in the Workers Compensation Commission of New South Wales be remitted to the Registrar of the Workers Compensation Commission.

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