Ypermachou v PMK Pty Ltd

Cases Cited: Fullford v Maccas Ferry Services Pty Ltd [2016] NSWSC 1161
Luo v Health Care Complaints Commission [2025] NSWSC 1121
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW and Ors [2007] NSWCA 149
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021

Category: Principal judgment

Parties: Agamemnon Ypermachou (Plaintiff)
PMK Pty Ltd (First Defendant)
Appeal Panel Constituted under s328 of the Workplace Injury Management and Workers Compensation Act 1998 (Second Defendant)
President of the Personal Injury Commission of New South Wales (Third Defendant)

Representation: Counsel:
A Ypermachou (Plaintiff, self-represented)
C M Roberts (First Defendant)
Solicitors:
Bartier Perry (First Defendant)

File Number(s): 2025/00156702

Publication restriction: Nil

JUDGMENT

1. By a further amended summons filed 2 July 2025, the applicant seeks judicial review of a decision dated 25 March 2025 of an Appeal Panel appointed by the President of the Personal Injury Commission (PIC). The applicant (Mr Agamemnon Ypermachou) seeks to have the decision quashed and the matter remitted to the PIC. The second defendant is the Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) and the third defendant is the President of the PIC. Both the second and third defendants have filed submitting appearances.

2. On 8 August 1995, Mr Ypermachou sustained injuries in the course of his employment with the first defendant, PMK Pty Ltd.

3. Mr Ypermachou brought two separate proceedings against PMK Pty Ltd seeking:

(a) a lump-sum payment for permanent impairment compensation under s 66 of the Workers Compensation Act 1997 (NSW) (WC Act); and (b) an assessment of whole person impairment (WPI) under s 39(2) of the WIM Act, which provides that the cessation of weekly payments after 5 years does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment is more than 20%. This latter claim was referred to as the “threshold dispute”.

4. On 19 August 2024, a certificate of determination was issued by PIC Member Dr Burge determining that Mr Ypermachou had suffered consequential injuries to his back, neck and left leg. He also determined that, as a result of those injuries, Mr Ypermachou suffered consequential conditions to his left arm at or above the elbow, to his right leg at or above the knee, and a consequential respiratory condition by way of obstructive sleep apnoea. These matters were then remitted to the President for a referral to a medical assessor (noting in particular order (iii)):

(i) The applicant suffered injury to his back, neck and left leg at or above the knee in the course of his employment with the respondent on 8 August 1995.

(ii) As a result of the injury referred to in [1], the applicant suffered consequential conditions to his left arm at or above the elbow and right leg at or above the knee and a consequential respiratory condition by way of obstructive sleep apnoea.

(iii) Both matters are remitted to the President for a referral to a Medical Assessor in relation to the following:

Date of injury: 8 August 1995

Method of assessment: table of disabilities

Body systems referred: neck, back, left leg at or above the knee including below the knee, left arm at or above the elbow (consequential condition) and right leg at or below the knee (consequential condition)

Date of injury: 8 August 1995

Method of assessment: whole person impairment (to determine threshold dispute) Body systems referred cervical spine, lumbar spine, respiratory system (obstructive sleep apnoea) (consequential condition), left upper extremity (elbow) (consequential condition) and right lower extremity (ankle) (consequential condition).

5. Injuries sustained prior to 1 January 2002 were to be assessed by reference to a previous method of calculation prescribed under Div 4 of Pt 3 of the WC Act. Under the former s 66:

A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker’s employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table.

6. The Table of Disabilities (contained in the former s 73) referred to various body parts, senses or functions and attributed a particular percentage or range of percentages to that item. The Table did not have an item for sleep apnoea. An assessment was made under the former s 66 by multiplying a proportion of the loss of use of that specified item to calculate the compensation payable. This system was abandoned when a new system operated from 1 January 2002. A helpful overview of the legislative changes to the WC Act was provided by Campbell JA in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW and Ors [2007] NSWCA 149 at [47]-[50].

7. From 1 January 2002, WPI is now assessed according to the Workers Compensation Guidelines as in force at the time the assessment is made (s 322 of the WIM Act). The Workers Compensation Guidelines referred to in s 322 are those issued under s 376 of the WIM Act, currently being the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (Guidelines). The Guidelines also adopt the fifth edition of the Guides to the Evaluation of Permanent Impairment issued by the American Medical Association.

8. Accordingly, Mr Ypermachou was required to be assessed under both the Table of Disabilities to determine his entitlements under s 66 of the WC Act for a lump-sum payment and for WPI in respect of his claim under s 39(2) of the WIM Act, for which his consequential obstructive sleep apnoea condition was to be determined (see Appeal Panel’s reasons at [26]).

9. On 10 December 2024, a medical assessment certificate was issued by Medical Assessor Dr Christopher Grainge, a respiratory and sleep specialist, who assessed Mr Ypermachou as having a 3% WPI in respect of the respiratory system (First MAC).

10. Medical Assessor Dr Tim Anderson, an occupational physician and who was the lead assessor, assessed all other body parts. On 13 December 2024, he issued a medical assessment certificate containing the following tables (Second MAC):

Table of Disabilities

| FACTOR | %IMPAIRMENT | | Neck | 10 | | Back | 20 | | Left arm at or above the elbow (consequential) | 5 | | Left leg at or above the knee | 20 | | Right leg below the knee (consequential) | 5 |

Whole Person Impairment

| FACTOR | %WPI | | Cervical spine | 5 | | Lumbar spine | 12 | | Left upper extremity (elbow – consequential) | 0 | | Right lower extremity (ankle – consequential) | 0 |

11. As noted above, Dr Anderson was required to assess Mr Ypermachou’s permanent impairment under the Table of Disabilities and his WPI. He also issued a combined MAC, assessing Mr Ypermachou’s overall WPI as 19% (Consolidated MAC). That Table is reproduced as follows:

| Name of Medical Assessor | Body Part or System | Date of Injury | Chapter, Page and Paragraph number in SIRA guidelines | Chapter, Page, Paragraph Figure and Table numbers in AMA5 Guides | %WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 7) | | Dr Tim Anderson | Cervical spine | 08/08/95 | Chap 4 P 24 | P392 T15-05 | 5 | 0 | 5 | | Lumbar spine | 12 | 0 | 12 | | Left upper extremity (elbow-consequential) | Chap 2 P 10 | Chap 16 | 0 | 0 | 0 | | Right lower extremity (ankle – consequential) | Chap 3 P 13 | Chap 17 | 0 | 0 | 0 | | Dr Chris Grainge | Respiratory system | Chap 5 | Chap 5 | 3 | 0 | 3 | | Total % WPI (the Combined Table values of all sub-totals) | 19 |

12. The Table above stated that the “Combined Table values” of all the sub-totals produces a total WPI of 19%. Although Mr Ypermachou did not contend before me that this was anomalous, it is difficult to see how that figure is arithmetically correct when the sub-totals are 5%, 12%, 3%, totalling 20% (with no deduction under s 323).

13. On 18 December 2024, through his then solicitor, Mr Ypermachou lodged an application to appeal against both the First and Second MACs using the “Form 10” proforma. He alleged that Dr Grainge made his assessment on the basis of “incorrect criteria” and that both MACs contained “demonstrable errors” pursuant to s 327(c) and (d) of the WIM Act respectively. After review by the President’s delegate, the medical dispute was referred to the second defendant, being the Appeal Panel constituted by one legal member and two medical members.

14. Both parties provided written submissions to the Appeal Panel. Given that the core of Mr Ypermachou’s complaint is that the Appeal Panel failed to address arguments that were clearly articulated in his written submissions, it is appropriate to highlight some features of those submissions (which were signed by counsel, Mr Andrew Parker, then representing Mr Ypermachou) which are relevant to that argument:

(a) Dr Anderson erroneously referred to the left ankle instead of the right ankle MRI scan. It is desirable to set out [24]-[27] of Mr Ypermachou’s submissions to the Appeal Panel on this matter (footnotes omitted) (emphasis in original):

24. However, there is an MRI scan of the right ankle also dated 21 December 2018 which relevantly states:

...14 x 13 x 9mm minimally depressed osteochondral lesion of the medial talar dome with associated significant bone marrow oedema.

25. Assessor Anderson appears to have fallen into factual error by referring to an MRI of the left ankle dated 21 December 2018 as opposed to the MRI of the right ankle dated 21 December 2018.

26. Moreover, Assessor Anderson also stated the following:

Most specialists have identified the back condition in the Table of Disabilities as 20%. Dr Charles New has extended this to 30%, although I believe 20% is more accurate. The left leg is mostly assessed at 15%, although at this assessment I believe 20% is more accurate, although Specialist Neuro-surgeon, Dr Vidyasagar Casikar in his report of 22/02/17 advised 30% at that time for the left leg.

Specialist Orthopaedic Surgeon, Dr Charles New in his three reports of 13/07/17, 26/06/22 and 3/10/2023 has fairly high whole person impairments. I was unable to replicate sufficient features to agree with these findings. Again, most specialists have identified the lumbar spine with DRE Ill with a whole person impairment of 12%, which was the same as my finding.

27. It is submitted that Assessor Anderson did not give some explanation for how he reached his conclusions in respect of the assessments made in accordance with the preceding paragraphs.

(b) Dr Grainge gave insufficient reasons in respect of his conclusion that Mr Ypermachou’s sleep apnoea was “well controlled”. It is desirable to set out [38]-[40] of Mr Ypermachou’s submissions to the Appeal Panel on this matter (footnote omitted):

38. Similarly, Assessor Grainge in the MAC dated 10 December 2024 reported the following:

...As above, Mr Ypermachou's sleep apnoea is well controlled and hence, any current impairment with daytime sleepiness is due to his underlying requirement for analgesics or antipsychotic medication and hence, the 3% whole person impairment only for the effects of therapy.

39. Assessor Grainge appears to provide a cursory account that the appellant's sleep apnoea was well controlled and attributed any impairment with daytime sleepiness due to the appellant's requirements for analgesics or antipsychotic medication.

40. However, given the complicated history and nature of the appellant's injuries, a more expansive explanation was required and in this regard Assessor Grainge erred and failed to provide sufficient reasons.

15. On 25 March 2025, the Appeal Panel published its decision and statement of reasons, dismissing Mr Ypermachou’s appeal and confirming both MACs and the Consolidated MAC.

Appeal Panel’s reasons summarised

16. At [5] of its reasons, the Appeal Panel made clear that Mr Ypermachou did not appeal against the orders of Dr Burge dated 19 August 2024 (see at [4] above).

17. At [6], the Appeal Panel noted that the medical assessment was referred to two medical assessors due to the need to assess “distinct and various body systems”. It recorded that Dr Grainge assessed Mr Ypermachou at 3% WPI for respiratory system, and Dr Anderson assessed all other body parts in accordance with the tables set out at [10] and [11] above.

18. The Appeal Panel noted at [13] that “it had all the documents that were sent to the Medical Assessor [sic] for the original medical assessment”. It also noted that Mr Ypermachou asked to be re-examined for the purposes of the appeal but this did not occur because the Appeal Panel was not satisfied that an error had been established.

19. At [21]-[28], the Appeal Panel explained why the two methods of assessment were used. The Appeal Panel then proceeded to consider each of Mr Ypermachou’s grounds of appeal.

20. The Appeal Panel found that Mr Ypermachou had failed to establish any error. In particular, it concluded that:

(a) Dr Grainge had not proceeded on incorrect criteria, as the orders of Member Burge plainly recorded that Mr Ypermachou’s consequential sleep apnoea condition was to be assessed by way of WPI. Mr Ypermachou did not refer to the Table of Disabilities in his 21 December 2023 letter which claimed compensation pursuant to s 66 of the WC Act and he did not refer to any medical report in respect of his claim under the Table of Disabilities (at [32]-[33]). (b) The fact that Dr Grainge stated that Mr Ypermachou recalled that he had symptoms around 2010 when he said in his statement dated 4 June 2009 that he “had difficulty sleeping” is an “insignificant inconsistency” in circumstances where his condition arose as a result of the original injury sustained in 1995 (at [43]-[45]). (c) It was unclear whether Mr Ypermachou’s submissions on this issue went to the assessment under the Table of Disabilities and/or WPI. He was assessed at the highest potential category for permanent impairment of the lumbar spine, given that he did not meet the requirements for a higher category and that the failure to assess the other levels has “no possible relevance” to an assessment of WPI (at [63]). Similarly, no error was demonstrated in respect of the Table of Disabilities, as the assessor referred to the relevant pathology in the lower back which was probably responsible for most of the lower back symptoms and the cause of radiculopathy (at [65]). (d) Dr Anderson’s reference to the MRI scan of the left ankle was a typographical error. But this error had no effect on the outcome of assessment under the Table of Disabilities or WPI because his description of the injury and conclusion of the right ankle condition was consistent with what was shown in the MRI scan, and the ultimate conclusion reached on this issue was based on the correct pathology to the right ankle as shown in the MRI scan dated 21 December 2018 (at [82]-[83]). (e) The Second MAC must be read as a whole. Dr Anderson provided reasons as to his assessment of Mr Ypermachou’s back condition and also reasons as to his findings under the Table of Disabilities (at [88] and [91]). (f) Mr Ypermachou did not explain how Dr Anderson’s comment as to general health had any bearing on the assessment of WPI or under the Table of Disabilities for any of the various body parts. This was especially so where there was “no logical connection between the disputed one-line comment and the various assessments” (at [98]). The Appeal Panel also said that there was “force” in the respondent’s submission that the evidence relied on by Mr Ypermachou on this issue was more than five years prior to the medical examination (at [100]).

Moreover, the medical assessor only observed that Mr Ypermachou’s general health was “reasonable”, being a vague description that encompassed a wide range of health conditions and was not inconsistent with the evidence relied on by him (at [101]).

(g) Mr Ypermachou only referred to a portion of Dr Grainge’s reasons. Dr Grainge provided a history of the onset of Mr Ypermachou’s sleep apnoea condition and associated treatment and considered the medical evidence. The conclusion that the sleep apnoea was “well controlled and daytime sleepiness was due to an unrelated condition” was based on his findings that Mr Ypermachou’s treatment history on CPAP therapy had been consistent over an extended period, Mr Ypermachou was on medication which caused daytime sedation, his CPAP therapy was not contributing to his daytime somnolence and these findings were consistent with the medical opinion of Dr Paul Thomas (at [112]).

21. Mr Ypermachou (who represented himself in the present proceeding) raised the following three grounds in the further amended summons:

1 Jurisdictional Error — The Review Panel Supported an unsubstantiated opinion and did not run an exercise into determining the reason by not referring to a submission on a centrally important matter that was based on uncontested facts.

4 Mistake in Finding a Fact- Apparent on the face of the record — insufficient reasons to support conclusion reached.

5 Significant typographical and clerical errors leading to misinterpretation, therefore, correct legal principles were not able to be applied.

22. The reference to grounds 4 and 5 is plainly incorrect and should refer to grounds 2 and 3 respectively.

Consideration and determination

23. As noted above, Mr Ypermachou represented himself. It was evident that he had given careful consideration to the presentation of his case. At the outset of his written submissions dated 17 February 2026 he acknowledged the following important limitations on the scope of judicial review (including review of the adequacy of reasons) and also identified his core complaint:

5. I accept and understand the general principles relied upon by the First Defendant, including that:

(a) minor factual errors do not of themselves establish jurisdictional error;

(b) reasons need not be lengthy;

(c) reasons are to be read fairly and as a whole;

(d) decision-makers are not required to refer to every piece of evidence; and

(e) Courts do not re-examine medical judgment.

6. My case is narrower. The issue is not whether inconsistencies, including typographical inconsistencies, existed. The issue is whether the Panel's reasons clearly expose the basis upon which it concluded that those inconsistencies had no bearing on the outcome in the context of the material before it.

24. Mr Ypermachou’s acknowledgment of the importance of these general principles was well-made. It is well-settled that an Appeal Panel has an implied statutory duty to give reasons and that the reasons must “explain the actual path of reasoning by which the [decision-maker] in fact arrived at [its decision]” (see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]). The reasons “need not be extensive” or “provide a detailed explanation of the way in which the relevant criteria [were] applied by medical specialists” (see Fullford v Maccas Ferry Services Pty Ltd [2016] NSWSC 1161 at [43] per Harrison J). The following observations of the High Court in Wingfoot at [47] are apposite:

…The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

25. One of Mr Ypermachou’s core complaints is that the Appeal Panel’s reasons did not adequately expose the path by which it concluded that acknowledged inconsistencies in the material were immaterial and were merely typographical. The crux of his argument appears at [52] of his written outline, which claims that the Appeal Panel’s reasons are “insufficient” as they “do not reveal the basis for preferring Dr Anderson’s and Dr Grainge’s opinions over contradictory evidence”.

26. Mr Ypermachou’s contends that Dr Anderson’s assessment of his right leg was affected by several “cascading errors”, including the typographical error in Dr New’s report referring to his left, rather than his right, ankle. He claims that this error was replicated in the Second MAC without correction and caused an unfortunate misinterpretation of the right lower extremity assessment. He submits that Dr New’s gait assessment of 20% was not taken into account by the Appeal Panel. He also contends that Dr Grainge’s assessment of his obstructive sleep apnoea did not take into account Dr Thomas’ assessment of his daytime somnolence, contributing to a 9% WPI.

27. In Luo v Health Care Complaints Commission [2025] NSWSC 1121 at [152] and [154], I sought to summarise relevant principles concerning a complaint that there has been a constructive failure to exercise jurisdiction because of a failure to address a clearly articulated argument:

Insofar as the first complaint raises a no evidence ground, I am, as noted above, willing to accept that it raises a question of law. I am also willing to accept that the second complaint raises a question of law to the extent that it can be characterised as a complaint that the Tribunal failed to respond to a substantial and clearly articulated argument on an issue of significance, such that there was a constructive failure to exercise jurisdiction and/or a denial of procedural fairness (see generally Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 77 ALJR 1088).

…

As to the second complaint, I do not accept that the submissions referred to by Mr Luo in his further amended summons in relation to Particulars 9 to 13 raised a substantial and clearly articulated argument on an issue of significance. The following observations of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]–[25] are apposite, while noting the need to pay close attention to the particular statutory context (footnotes omitted):

24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

28. Mr Ypermachou complained that the Appeal Panel had failed to address his argument that Dr Anderson had not explained why Dr New’s assessment of a 20% derangement of gait was not relevant to Dr Anderson’s WPI assessment of Mr Ypermachou’s right ankle. He said that the Appeal Panel’s failure to address the question of right gait derangement, particularly in light of Dr New’s assessment, may have been caused by the confusion concerning MRI’s of the left, as opposed to the right, ankle.

29. The difficulty with this complaint is that the argument upon which it is predicated was not squarely put to the Appeal Panel in Mr Ypermachou’s written submissions below. He candidly acknowledged this several times when the matter was put to him by the Court regarding [24]-[27] of his written submissions to the Appeal Panel (which are set out at [14(a)] above) (emphasis added):

HIS HONOUR: So in so far as your complaint is look, they haven't dealt, the appeal panel didn't deal with the submission that was clearly made to it on this issue about gait‑‑

PLAINTIFF: Yes.

HIS HONOUR: ‑‑are you referring specifically to what Mr Parker set out in paragraphs 24 through to 27 of the submissions?

PLAINTIFF: Yes, your Honour, I'll just bring up the submissions. But yes. So he says at 23 "further on this point" which moves over from the complaint about the narrowing and the back condition, and at 23 he mentions the report of the left ankle dated, and then at 24 the difference there.

And then at 25 Anderson, Dr Anderson appears to have fallen into factual error by referring to the MRI of the left ankle as opposed to the right ankle. So moreover he is pointing out that there is a factual error there under the demonstrable errors category of his assessment.

Then at 27 when he says "refer to my preceding paragraphs" it was the, it was interpreted that the preceding paragraphs were only referred to, the two preceding paragraphs on 26, but as I understand it he wanted an explanation as to the gait and that's where we were expecting to have at least an acknowledgement that there was a gait derangement, and because there is a left gait as well it warranted clearer explanation as to how they came up with the conclusion that the typographical error had no bearing on the assessment.

HIS HONOUR: But it's the case, is it not, that the appeal panel does acknowledge that there is a typographical error there and the appeal panel refers to the fact that there is an MRI dated 21 December 2018 in respect of the right ankle?

PLAINTIFF: Yes. So they have identified that there is a right ankle but they haven't identified that there is ongoing pathology, treatment and complications with that ankle. They have only referred to, instantly referred to pre‑surgery reports of osteochondral lesion, which was the reason I had the operation, the surgery; and then they go over the report done by Dr Wines as to the recovery and how it's not going to get much better and so on. So they use those references and relate to table of disabilities but they do not cover any WPI assessment as to the gait, which was‑‑

HIS HONOUR: I am struggling to see where in Mr Parker's submissions the gait issue that you now complain was not confronted by the appeal panel was put on the table.

PLAINTIFF: Well, your Honour, it wasn't explained clearly but that error constituted better explanation as to how they came up with that typo error not being relevant because there's a whole gait derangement that's missing.

HIS HONOUR: I think you might be misunderstanding my point. The error that you allege the appeal panel fell into was a failure to deal with a clearly articulated argument and what I am asking you to identify for me is where in Mr Parker's submissions was the complaint that you now make about failure to address gait in relation to the right ankle injury ongoing was squarely put.

PLAINTIFF: Well, your Honour, it wasn't squarely put, in fact it wasn't very detailed in its enquiry but under the demonstrable error I believe that Andrew Parker refers to it and understands that the mistake had fallen into factual error because there is an existing left gait derangement and so I believe that the error, it wasn't actually clearly specified in the submissions but it refers back to that area being missed by the panel and by Anderson because he has pointed out a different part.

HIS HONOUR: I understand that but at the risk of repeating myself, for you to succeed on this ground your foundation for the argument has to be Mr Parker, or somewhere else in the submissions that were made to the appeal panel, put this squarely on the table and the appeal panel failed to address it.

PLAINTIFF: Okay, your Honour. Well, it wasn't put clearly, then I agree with you there. But I believe that the material being the biggest part of my WPI assessment should have been an important part of the assessment which was all in the material with respect to the ongoing gait treatment and I feel as if the panel had a responsibility to not just follow Dr Anderson's framework of interpretation but to also look at how a zero percentage WPI assessment could differ so much from a 20 per cent which was the biggest part of my claim.

That was the reason I went for a further damages claim because I believed I had passed the threshold and I needed to support the medical costs and I decided to proceed faster than I probably should have because the $4,000 I had for reports ran out and I ended up submitting a report from Dr New.

That was the only evidence that really supported this gait derangement. It was backed up by reports and it's probably the biggest weighing part of my assessment that the panel overlooked, and I believe it's the responsibility for the panel to take that material that was before it into consideration even though it wasn't put to it in the submissions because Anderson did the same, he did the same, and so by following Anderson's framework he overlooked this same issue and I believe it fell short of the threshold and for 2 per cent a 20 per cent assessment was overlooked.

30. In his oral submissions, Mr Ypermachou said that the Appeal Panel’s error “lies in the reasoning to step to immaterial was expressed predominantly through Anderson structural and examination framework which left out the right ankle treatment supported and the evidence being with the exhibit F and exhibit G with the injections”. These exhibits form part of Mr Ypermachou’s affidavit dated 12 January 2026 which was admitted without objection. Exhibit F included a neurophysiology test report dated 19 April 2023 by Dr Samuel Kim (on referral from Dr New). It recorded neurological test results for various parts of Mr Ypermachou’s body, including his right ankle and right knee. Dr Kim concluded in his report: “The pattern of neurophysiological finding is consistent with an active right L3-S1 radiculopathy…”.

31. Exhibit F included another neurophysiology test report dated 2 May 2025 by Dr Kim who, after setting out the results, concluded that there was “evidence of right L4-5 disfunction on EMG. Together with absent right EDB CMAP and preserved lower limb sensory responses, the findings are consistent with L4-5 radiculopathy. Otherwise, the studies are within the normal limits and stable comparted with 5/8/2024”.

32. Exhibit G contains various reports from a clinic called Synergy radiology, including a brief report dated 7 March 2023 by Dr Craig Harris who had given various injections into Mr Ypermachou’s right L4 and L5. Dr Harris reported that “Mr Ypermachou had tolerated the procedure extremely well, reporting his pain to reduce from 5/10 down to 2/10” and that “no immediate post-procedure complication was encountered”.

33. When the Court invited Mr Ypermachou to explain the significance of these exhibits he said that they pointed out the ongoing problem with his gait and proved that there was an existing gait derangement and limp on his right side that should have been considered with respect to WPI as opposed to giving a 0% WPI to his right ankle.

34. When the Court commented that there appeared to be no reference to those materials in Mr Ypermachou’s written submissions to the Appeal Panel, Mr Ypermachou confirmed this was the case but said that the exhibits were included in the material which was before the Appeal Panel and ought to have been addressed.

35. In these circumstances, I do not accept that Mr Ypermachou has established a reviewable error on the part of the Appeal Panel in not specifically addressing that material. The particular reports were part of a large body of medical evidence placed before the Appeal Panel. If the reports had particular significance to Mr Ypermachou’s appeal, that should have been made clear in his written submissions to the Appeal Panel which, as noted above, were settled by his then legal counsel (Mr Parker). In my view, Mr Ypermachou’s complaint sits uncomfortably with the High Court’s description of the role and function of a Medical Panel in Wingfoot as set out at [24] above. Moreover, I find that the significance of the particular reports was not drawn to the Appeal Panel’s attention.

36. I now turn to address Mr Ypermachou’s judicial review challenge relating to the Appeal Panel’s response to his complaints regarding Dr Grainge’s assessment (as summarised at [14(b)] above). Fundamentally, the complaint is that Dr Grainge gave insufficient reasons for concluding that Mr Ypermachou’s sleep apnoea was “well controlled”.

37. In explaining why he had arrived at a 3% WPI in respect of Mr Ypermachou’s sleep apnoea, Dr Grainge said at [10(a)] of his reasons for assessment that Mr Ypermachou had a 3% WPI “due to the effects of treatment” (being a reference to the use of CPAP therapy to treat the apnoea hypopnea). Dr Grainge also referred to Mr Ypermachou taking a medication which was known to cause daytime sedation. He then said that, given that Mr Ypermachou has “well controlled apnoea hypopnea on CPAP therapy, his sleep apnoea is not contributing to his daytime somnolence, rather that this is being caused by his idiopathic hypersomnolence, which is not related to the work based accident and also contributed to by his need for sedating medication secondary to his mental health”. Dr Grainge concluded that Mr Ypermachou did not have “ongoing permanent impairment due to his obstructive sleep apnoea but does warrant an award due to his ongoing requirement to use CPAP therapy”.

38. Dr Grainge noted Dr Thomas’ medical report dated 3 May 2024 in which he stated that Mr Ypermachou had obstructive sleep apnoea which was well controlled on CPAP and that his antipsychotic medication and analgesic medication contributed to his daytime somnolence. Dr Grainge also referred to other medical reports, including one dated 28 July 2023 by Dr Dimitri who assessed a 23% WPI. However, Dr Grainge noted Dr Thomas’ view that this opinion was outside the bounds expressed by other respiratory specialists, including Dr Thomas himself and a Dr Clarke.

39. In his oral submissions to me, Mr Ypermachou complained that Dr Grainge’s WPI assessment for sleep apnoea failed to take into account the effect on his sleep apnoea of his long-term use of analgesics, which he had taken for decades to prevent sleep disturbance. Mr Ypermachou said that he had actually stopped using pain medication before he saw Dr Grainge.

40. Mr Ypermachou also complained about Dr Grainge’s reference to Dr Thomas’ report which is referred to above. Mr Ypermachou claimed that Dr Thomas should have made an adjustment having regard to the effect of antipsychotics.

41. Two principal complaints were made in Mr Ypermachou’s submissions to the Appeal Panel regarding the First MAC. First, there was a factual error because Dr Grainge referred to Mr Ypermachou having problems sleeping from around 2010 when there was documentation that the problems had started a year earlier.

42. The second complaint was that Dr Grainge ought to have provided a more detailed analysis and failed to give adequate reasons.

43. As to the first complaint, in his submissions to the Appeal Panel, Mr Ypermachou claimed that Dr Grainge had erroneously stated that his sleep apnoea commenced in around 2010 when in fact Mr Ypermachou had provided a written statement that he was having sleeping difficulties in 2009. He said that this constituted a “demonstrable error” which affected Dr Grainge’s MAC. As the Court pointed out, what constitutes a “demonstrable error” for the purposes of an application for appeal being referred to an Appeal Panel is not the same as a jurisdictional error for the purposes of judicial review. It is important to bear in mind that it is the Appeal Panel’s decision which is the subject of judicial review challenge, not that of Dr Grainge.

44. In any event, the Appeal Panel did address this “demonstrable error” (which is of a factual nature) in its reasons at [39]-[45]. The Appeal Panel explained that, because Dr Grainge was assessing the sleeping condition in 2024, the reference to “around 2010” is also consistent with the condition having commenced in 2009. The Appeal Panel correctly emphasised that the assessment of impairment relates to the time of the medical examination. Thus, in circumstances where Dr Grainge conducted his examination in December 2024, Dr Grainge’s factual error relating to the onset of the sleeping injury some 15 years previously was “an insignificant inconsistency”.

45. No reviewable error is disclosed in that reasoning.

46. As to the second complaint, the Appeal Panel squarely addressed the complaint regarding the inadequacy of Dr Grainge’s reasons. At [110]-[114], the Appeal Panel explained that Dr Grainge’s positive view that the sleep apnoea was “well controlled” and that the daytime sleepiness was due to an unrelated condition was based on Dr Grainge’s reasoning that:

(a) Mr Ypermachou’s treatment history on CPAP therapy had been consistent over an extended period; (b) he was on medication for treatment of schizophrenia which causes daytime sedation; (c) he had well-controlled apnoea hypopnea on CPAP therapy which is not contributing to daytime somnolence; and (d) Dr Grainge’s conclusion was consistent with that of Dr Thomas.

47. The Appeal Panel then explained at [113]-[114] why it rejected this complaint (footnotes omitted):

113. The Medical Assessor is not required to choose between competing medical opinions and is required to form his or her own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh. Based on this reasoning the Medical Assessor did not associate the daytime somnolence to the related obstructive sleep apnoea. That conclusion meant that the Medical Assessor did not assess the appellant as falling within class 1 of Table 13-4 of AMA 5 and only allowed an impairment of 3% for the effects of treatment pursuant to cl 1.32 of the Guidelines.

114. This ground of appeal is only based on whether there was a failure by the Medical Assessor to provide sufficient or adequate reasons. For these reasons we are not satisfied that this ground is successful.

48. I have not been persuaded by Mr Ypermachou that the Appeal Panel fell into reviewable error in rejecting his complaints concerning Dr Grainge’s assessment.

Conclusion

49. For these reasons, the further amended summons filed 2 July 2025 will be dismissed, with costs.

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