Quintiliani-Johns v Secretary, Department of Education

1. [1]

   The plaintiff, Flavia Quintiliani-Johns, has applied for judicial review of a decision of an Appeal Panel appointed pursuant to s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). The first defendant, the Secretary of the Department of Education (Secretary), was the plaintiff’s employer and the respondent in the Appeal Panel.

2. [2]

   The subject of the appeal was a medical assessment certificate that was issued by a medical assessor in respect of the plaintiff’s claim for lump sum compensation resulting from psychological injury, pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the 1987 Act). The Appeal Panel concluded that there was a rounding error in the percentage of whole person impairment (WPI) found by the medical assessor but otherwise dismissed the plaintiff’s contentions that the medical assessor’s determination was affected by demonstrable error and involved the application of incorrect criteria.

3. [3]

   The plaintiff alleged that the Appeal Panel’s decision involved an error of law on the face of the record and/or jurisdictional error on four grounds. The plaintiff contended that the Appeal Panel failed to engage with substantial and clearly articulated arguments that she advanced before it, in respect of the medical assessor’s assessment of degree of impairment in relation to self care and personal hygiene (ground 1) and social and recreational activities (ground 2). The plaintiff also contended that the Appeal Panel took into account an irrelevant consideration, namely its own views as to her degree of impairment with respect to those two facets of the WPI assessment (ground 3). Finally, the plaintiff contended that the Appeal Panel erred in failing to find error in the medical assessor’s approach to making a deduction for a pre-existing condition (ground 4).

4. [4]

   For the following reasons, I agree that the decision of the Appeal Panel was affected by jurisdictional error. It must be set aside, as must the certificate of determination, dated 9 January 2024, which the Personal Injury Commission (PIC) issued to give effect to the Appeal Panel’s determination. The matter should be remitted to the second defendant, the President of the PIC.

5. [5]

   I will first provide a brief summary of the applicable legislative framework before addressing the context in which the Appeal Panel came to hear an appeal from a medical assessment certificate relating to the plaintiff and the issues on the present application for judicial review.

Legislative Framework

1. [6]

   The 1987 Act, the 1998 Act, and the Workers Compensation Regulation 2016 (NSW) establish a workplace injury management and workers compensation regime. The 1987 Act, pursuant to s 2A of that Act, is to be construed as if it formed part of the 1998 Act. Because the plaintiff’s claim is for compensation under the 1987 Act, the Civil Liability Act 2002 (NSW) does not apply: Civil Liability Act, s 3B(1)(g).

2. [7]

   Chapter 7 of the 1998 Act regulates the making of claims for compensation and the administration of those claims. The entitlement to compensation for permanent impairment resulting from an injury is determined under Division 4 of Part 3 of the 1987 Act. Pursuant to s 65A of that Act, no compensation is payable in respect of permanent impairment that results from a primary psychological injury (being the type of injury alleged by the plaintiff, namely, a psychological injury which did not arise as a consequence of, or secondary to, a physical injury) unless the degree of permanent impairment resulting from that injury is at least 15%. Section 65 states that the degree of permanent impairment which results from an injury is to be assessed as provided by that section and Part 7 of Chapter 7 of the 1998 Act; and that if a worker receives multiple injuries arising out of the same incident, those injuries are to be treated as one injury.

3. [8]

   Part 7 of Chapter 7 of the 1998 Act contains provisions for assessing impairment and for resolving disputes about that assessment. Where, as in this case, a dispute arises as to the degree of permanent impairment, it may be referred to the President of the PIC for determination by the PIC: s 288. Pursuant to s 293, the President may refer the dispute for assessment by a medical assessor, subject to any regulations under s 321A (no such regulations have been made). Section 322(1) requires that the assessment of the degree of permanent impairment is to be made in accordance with the “Workers Compensation Guidelines” (as in force at the time of the assessment) issued for that purpose. Following assessment, the medical assessor is to give a certificate which is conclusively presumed to be correct as to the degree of permanent impairment in any proceedings before a Court or the PIC: ss 325, 326.

4. [9]

   Section 323 of the 1998 Act is of particular relevance to the present application. It provides:

5. [10]

   Guidelines have been made pursuant to s 376 of the 1998 Act. Those presently in force are the 4th edition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines), re-issued by the State Insurance Regulatory Authority on 1 March 2021.

6. [11]

   As Simpson AJA noted in Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (“Marks (No 2)”) at [8], in relation to physical injury the Guidelines have adopted guidelines issued by the American Medical Association (commonly referred to as “AMA5”). However, a separate chapter of the Guidelines has been issued for psychiatric injury, Chapter 11, which sets out the methodology for assessing psychiatric impairment. The impairment rating is based upon a psychiatric diagnosis (at [11.4]), which is measured using six psychiatric impairment rating scales (PIRS), covering the areas of self care and personal hygiene; social and recreational activities; travel; social functioning; concentration, persistence and pace; and employability: at [11.11].

7. [12]

   Each scale is divided into five classes: at [11.12]. In Ferguson v State of New South Wales [2017] NSWSC 887 at [14], Campbell J explained, by reference to the reasons of the Appeal Panel in that case:

8. [13]

   For each class within each scale, examples are provided in tabular form, as “examples only”: at [11.12]. Table 11.1 of the Guidelines, for example, sets out the classes for the self care and personal hygiene scale:

9. [14]

   Table 11.2 of the Guidelines sets out the classes for the social and recreational activities scale:

10. [15]

    In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [64], Garling J described the examples given in the tables in the Guidelines as neither the sole, nor the minimum, basis for assessing a person's impairment as falling within a particular class. Rather, the examples “attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described”: at [60].

11. [16]

    The assessment of psychiatric impairment by reference to each of the rating scales is then used to determine, through a process of aggregation and conversion, a person’s WPI percentage. Paragraph 11.10 of the Guidelines provides:

Background to the proceedings

1. [17]

   The evidence was addressed in a single affidavit of the plaintiff’s solicitor, Grant Scott Watson, affirmed 19 April 2024. The medical assessment certificate issued by the appointed medical assessor, Dr Clayton Smith (Certificate), the statement of reasons for decision of the Appeal Panel dated 23 November 2023, and the certificate of determination issued by the PIC on 9 January 2024 were annexures to Mr Watson’s affidavit. Exhibited to his affidavit was a bundle comprising the submissions, evidence and other documents before the Appeal Panel.

2. [18]

   The background to the plaintiff’s injury was set out in a statement that she made to the insurer’s investigator, dated 11 June 2021. The medical assessor summarised that background in the section of the Certificate titled “Brief history of the incident/onset of symptoms and of subsequent related events, including treatment”. For the purposes of these proceedings it suffices to reproduce that part of the summary that related to the onset of the plaintiff’s symptoms:

3. [19]

   On 17 March 2020, the plaintiff lodged her first workers compensation claim for psychological injury. On 23 July 2020, the insurer disputed that claim.

4. [20]

   On 21 April 2021, the plaintiff lodged a second workers compensation claim for psychological injury. On 20 July 2021, the insurer accepted liability to make weekly compensation payments for 13 weeks, pursuant to s 36 of the 1987 Act. However, on 6 September 2021, the insurer disputed the plaintiff’s claim for compensation in relation to the alleged psychological injury and gave notice that the weekly compensation payments would cease on 29 September 2021.

5. [21]

   On 21 September 2021, the plaintiff’s solicitors wrote to the insurer, contesting the dispute as to both of the plaintiff’s workers compensation claims. On 5 October 2021, the insurer replied, indicating that it had reviewed its decisions and was confirming the disputes.

6. [22]

   On 5 October 2021, the plaintiff saw Dr Martin Allan, a psychiatrist, at the request of her solicitors, for the purpose of providing an opinion regarding the assessment of WPI. Dr Allan provided a report dated 8 October 2021, and a supplementary report dated 17 August 2022. He expressed the opinion that the plaintiff’s WPI was 24%, but that 10% of WPI should be deducted due to pre-existing impairment pursuant to s 323(2) of the 1998 Act, leaving a final WPI of 22%.

7. [23]

   On 29 August 2022, the plaintiff wrote to the Secretary’s insurer. Her solicitor enclosed the reports of Dr Allan and made a claim for lump sum compensation pursuant to s 66 of the 1987 Act.

8. [24]

   On 25 October 2022, the plaintiff saw psychiatrist Dr Nicholas Cassimatis at the request of the insurer’s solicitors to assess WPI. On 6 December 2022, the insurer denied the plaintiff’s s 66 claim, citing Dr Cassimatis’ view that she had not reached a state of maximal medical improvement.

9. [25]

   On 28 February 2023, the plaintiff commenced proceedings in the PIC, filing an application to resolve a dispute and supporting documentation. The subject of the dispute was her claim for lump sum compensation and for weekly compensation payments. The plaintiff’s application listed two psychological injuries, the deemed dates of which corresponded to the dates of her two workers compensation claims. The description of each injury was the same:

10. [26]

    On 23 March 2023, the Secretary filed a response and supporting documentation, disputing, among other things, the plaintiff’s claim for WPI. The Secretary also contended that the plaintiff had not reached the state of maximum medical improvement.

11. [27]

    On 23 May 2023 and 26 May 2023, respectively, the plaintiff and Secretary filed applications to admit late documents in preparation for the PIC hearing on 31 May 2023. The plaintiff sought to rely on a letter from the Department of Education dated 9 May 2023 which confirmed her medical retirement with effect from 28 April 2023; and a further report from Dr Allan dated 11 May 2023. The Secretary, in turn, sought to rely upon further reports from Dr Cassimatis together with earlier medical records.

12. [28]

    It was common ground on this application that on 31 May 2023, the Secretary agreed to pay weekly payments to the plaintiff to date and continuing, and the parties agreed that the dispute would be referred to a medical assessor for assessment. The scope of the medical dispute referred was set out at the beginning of the Certificate:

13. [29]

    According to the Certificate, the medical assessor was provided with the application to the PIC and the insurer’s reply together with their respective supporting documents and the applications to admit late documents. He examined the plaintiff on 21 June 2023, by videolink.

Medical Assessment Certificate

1. [30]

   On 7 July 2023, the medical assessor issued the Certificate, assessing the plaintiff as having WPI of 4% (rounded down from 4.5%), on the basis of which the plaintiff was not entitled to lump sum compensation: 1987 Act, s 65A(3). Under the heading “Reasons for assessment”, the medical assessor stated that in making that assessment he had taken into account the following matters:

2. [31]

   The medical assessor diagnosed the plaintiff as meeting the DSM-V criteria for a bipolar disorder type 1. Consistently with that disorder, he considered that her condition was “characterised by manic episodes … lasting at least one week and present most of the day nearly every day”, and that the plaintiff “predominantly suffered from major depressive episodes, often with melancholic features, characterised by depressed mood most of the day, nearly every day”. His diagnosis was established “from the longitudinal history, medical evidence provided by [the plaintiff’s] treating clinicians, more recent evidence from her admissions to the James Fletcher Psychiatric Unit and the Newcastle Mental Health Unit and collateral history provided by [the plaintiff’s] husband to her general practitioner and hospital staff”.

3. [32]

   The medical assessor set out the following by way of explanation for his calculation of WPI:

4. [33]

   The Certificate noted that the worksheet for the medical assessor’s calculations was attached. That worksheet contained the following table:

5. [34]

   Also attached to the Certificate was the PIRS rating form that he completed in reaching his conclusion of WPI. Relevantly, that table included the following entries for self care and personal hygiene, and social and recreational activities:

6. [35]

   Under the heading “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing injury”, the medical assessor stated:

Application to Appeal Panel

1. [36]

   On 4 August 2023, the plaintiff lodged an appeal against the medical assessment pursuant to s 327(1) of the 1998 Act, relying on two of the four grounds of appeal for which s 327(3) provides:

2. [37]

   In the written submissions in support of the appeal, the plaintiff contended that the medical assessor had made errors in assessing her as class 2 for both “self care and personal hygiene” and “social and recreational activities”. The plaintiff also contended that the medical assessor had misunderstood the nature and timing of the events that caused her injury, wrongly attributing some of the symptoms to her “pre-event psychological status”. She submitted, “further and in the alternative”, that the medical assessor had misapplied the Guidelines.

3. [38]

   In respect of self care and personal hygiene, the plaintiff referred to the statement she made on 8 August 2022, in which she stated that she continued to experience severe depressive symptoms and anxiety, continued to struggle with insomnia, often forgot to eat and struggled to look after herself. Her husband and daughter reminded her to eat and looked after her a lot. This part of her statement, which was not referred to in the otherwise detailed section of the Certificate commenting on the evidence (pp 8-14), was consistent with the medical evidence summarised. The plaintiff also referred to the section of the Certificate subtitled “social activities/ADLs”, in which the medical assessor recorded a number of statements that were relevant to this scale, namely:

4. [39]

   The plaintiff then referred to the PIRS table and the medical assessor’s reasons for assessing her in class 2, before submitting:

5. [40]

   The plaintiff’s submissions in relation to the social and recreational activities scale adopted a similar structure. The submissions referred, first, to her August 2022 statement in which she stated that she avoided going out into the community or social settings as much as she could, for fear of running into someone from the school where she used to work. In the Certificate, the medical assessor had recorded that she felt apathetic, disinterested and did not enjoy things, as well as making the following comments in the section of his report, “social activities/ADLs”:

6. [41]

   After setting out the reasons of the medical assessor in the PIRS table, the plaintiff submitted:

7. [42]

   In respect of the medical assessor’s application of a deduction pursuant to s 323, the plaintiff first submitted that while it was uncontroversial that the plaintiff now has bipolar disorder type 1, the basis upon which the medical assessor found that to be a pre-existing condition was unclear. She submitted that this was highly relevant as episodes of mania suffered by those with bipolar disorder type 1 were more severe and prolonged than episodes of hypomania suffered by those with bipolar disorder type 2. She submitted that the opinion of the medical assessor was inconsistent with:

   1. (1)

      the 25 October 2022 report of Dr Cassimatis, which diagnosed bipolar disorder but did not identify a type, as well as subsequent reports in which he considered that the plaintiff initially had bipolar disorder type II, which was exacerbated by the events at the school and led to bipolar disorder type I; and

   2. (2)

      a discharge summary from the James Fletcher Mater Mental Health Services on 17 January 2019, which recorded a diagnosis of bipolar disorder type 2.

8. [43]

   The plaintiff submitted that if the medical assessor found something different, there was a failure to give reasons in respect of the issue, and in any case there was no evidence of the plaintiff being affected by her bipolar disorder type 2 in January 2019, before the events leading to her injury.

9. [44]

   The plaintiff next submitted that the medical assessor misapplied s 323 and the Guidelines, and that on a correct application of the Guidelines the appropriate deduction was 10%. The plaintiff submitted that his finding that the extent of the deduction was difficult or costly to determine was unsurprising and should have led to the application of a 10% deduction. The plaintiff contended that such a deduction was consistent with the available evidence, and noted that both Dr Allan and Dr Cassimatis had found 10% to be the appropriate deduction. She submitted that result was also consistent with [11.10] of the Guidelines, “which in cases where there is a symptomatic pre-existing condition a Medical Assessor is to assess any pre-existing impairment using PIRS methodology and subtract that from the current level of WPI” and, “[i]n cases like this case (and indeed many cases) where this cannot be done, the deduction is 10%”.

10. [45]

    On 6 September 2023, the delegate of the President of the PIC referred the appeal to an Appeal Panel comprising PIC member Richard Perringnon and medical assessors Dr Michael Hong and Dr Douglas Andrews.

The decision of the Appeal Panel and the grounds of appeal

1. [46]

   On 23 November 2023, the Appeal Panel issued its statement of reasons. As I noted above, the Appeal Panel did not uphold any of the plaintiff’s contentions in the appeal but recognised that the medical assessor should have rounded the final WPI up from 4.5%, rather than down; and on that basis revoked his determination and determined that the plaintiff’s WPI was 5%.

2. [47]

   The Appeal Panel first set out the criteria for class 2 and class 3 of the self care and personal hygiene scale (at [10]), extracted the reasons of the medical assessor in the PIRS form (at [11]), and noted the history he had taken of the plaintiff in relation to her social activities addressed (at [12]).

3. [48]

   The Appeal Panel acknowledged that some of the history that the medical assessor had recorded “was not quoted in the reasons given in the PIRS Table for assessing a class 1 impairment”, but said that the medical assessor’s reasons were “to be read as a whole” (at [13]) and continued (at [14]):

4. [49]

   Pausing there, it is apparent from a comparison of the above paragraph with the medical assessor’s reasons in the PIRS table that the Appeal Panel’s summary did not reflect the medical assessor’s reasons. Nonetheless, the Appeal Panel proceeded on the basis of its summary, stating:

5. [50]

   By ground 1 of the Amended Summons, the plaintiff contended that in addressing its complaint about the reasons of the medical assessor about self care and personal hygiene, the Appeal Panel failed to respond to a substantial, clearly articulated argument that she had advanced. This was, she submitted, “not only a denial of procedural fairness but also a constructive failure to exercise jurisdiction”.

6. [51]

   In Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, Kirk JA (Meagher JA and Simpson AJA agreeing) recently summarised the principles which are relevant to an allegation of constructive failure to exercise jurisdiction of the nature that the plaintiff has advanced. His Honour stated:

7. [52]

   His Honour 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):

8. [53]

   I have set out the submissions the plaintiff advanced to the Appeal Panel about self care and personal hygiene at [38]-[39] above. Her central point was that in concluding that her impairment on this scale was properly assessed as within class 2, the medical assessor had not brought to account what she said in her August 2022 statement on that subject, or pertinent statements in her history as he had recorded it (that inference being available from the absence of any reference to those matters in his reasons in the PIRS table). The plaintiff submitted to the Appeal Panel that on all of the material before the medical assessor that was relevant to this category, she would properly be assessed as class 3.

9. [54]

   The Appeal Panel did not engage with that submission. It emphasised that it was “the task of the Medical Assessor to determine in which category the behavioural consequences of psychological injury best fit”, when the point the plaintiff was making was that the medical assessor had undertaken that task in relation to self care and personal hygiene without considering all of the material that was relevant to that scale. The Appeal Panel’s statement that where the facts fit “is a matter of opinion on which reasonable minds might differ” might be relevant when considering whether demonstrable error has been shown (see Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [87] (Gleeson JA, Macfarlan JA and Barrett AJA agreeing) (“Vannini”)), but it was not an answer to the plaintiff’s point, that the medical assessor had omitted relevant material from his assessment. It was not a case, as the Appeal Panel sought to characterise it, of the medical assessor having “not quoted” some of the history in his reasons in the PIRS table.

10. [55]

    Although the Secretary contended that there was no failure on the part of the Appeal Panel to engage with the plaintiff’s submissions, the Secretary’s written and oral submissions sought to defend the ground on the basis of the merits of the decisions of the medical assessor and the Appeal Panel on this scale. Those submissions did not answer the ground the plaintiff advanced. It follows that ground 1 is made out.

11. [56]

    I have set out the plaintiff’s submissions to the Appeal Panel on this PIRS category above at [40]-[41]. Those submissions raised for consideration the issue that the Court of Appeal considered in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 (“Ballas”). Bell P and Payne JA (with whom Emmett AJA agreed) there stated:

12. [57]

    The Appeal Panel did not address the issue that the plaintiff raised in this regard in relation to the range of conduct that the medical assessor had relied upon in assessing social and recreational activities. Instead, the Appeal Panel adopted the same approach in relation to this scale as it had for self care and personal hygiene, summarising the plaintiff’s history and the medical assessor’s reasons before concluding:

13. [58]

    The focus of the Appeal Panel’s was whether the matters on which the medical assessor relied were “consistent with the exemplars for a class 2 impairment”. That reasoning did not grapple with the point the plaintiff was seeking to make in her submissions, which was that a number of the plaintiff’s activities on which the medical assessor relied as social and recreational activities were not correctly characterised as such. Nowhere in the Appeal Panel’s reasons did it address that argument.

14. [59]

    The Secretary’s written submissions again sought to engage with the merits of the Appeal Panel’s assessment, contending that clinical observations should be pre-eminent. Again, that submission did not answer the constructive failure to exercise jurisdiction that the plaintiff advanced. As Bell P and Payne JA recognised in Ballas, “[m]isassignment of conduct to a particular area or ‘scale’, and assessment of that conduct for the purposes of assigning a rating or ‘class’ to that area, has the potential to distort the overall WPI of an injured worker”: at [84]. The plaintiff advanced a substantial clearly articulated argument that was directed to that issue. The Appeal Panel did not consider it. Ground 2 is made out.

15. [60]

    The plaintiff also took issue with the comments that the Appeal Panel made in upholding the medical assessor’s rating for self care and personal hygiene, and his rating for social and recreational activities. In relation to the former, the Appeal Panel stated at [16]:

16. [61]

    The Appeal Panel made a similar comment in relation to social and recreational activities (see [24] of its reasons, extracted in [57] above). However, it subsequently stated that its own opinion was “beside the point”: at [25].

17. [62]

    The plaintiff contended that the Appeal Panel introduced an irrelevant consideration, namely, its own opinion, which diverted it from its statutory task. The Secretary, on the other hand, submitted that the words “in our view” did not indicate that the Appeal Panel was conducting its own assessment and offering its own opinion, particularly having regard to the acknowledgment in [25] that its view was beside the point.

18. [63]

    The task for the Appeal Panel was to determine the grounds of appeal by reference to the submissions advanced in respect of those grounds: Vannini at [20]-[22] (Gleeson JA, Macfarlan JA and Barrett AJA agreeing). The comments about which the plaintiff complained in ground 3 supported the plaintiff’s complaint on grounds 1 and 2, that the Appeal Panel was directing itself to the task of making an independent assessment of the plaintiff’s impairment with respect to self care and hygiene, and social and recreational activities, at the expense of considering what she had submitted. That said, the Appeal Panel also expressly recognised, correctly, that its own views were not relevant. In the face of that acknowledgment, I am not satisfied that ground 3 as advanced is made out.

19. [64]

    In Cole v Wenaline Pty Ltd [2010] NSWSC 78 (“Cole”), in a case involving physical injury, Schmidt J explained the operation of s 323 in these terms:

20. [65]

    Subsequently, in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 (“Elcheikh”), Schmidt J summarised the “steps” involved in applying s 323 as follows (at [126]):

21. [66]

    Her Honour’s decisions have been followed on a number of occasions, including, in recent times, in cases involving psychiatric injury: Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 at [51]-[52] (Griffiths AJ); and Secretary, Department of Communities and Justice v Taane [2024] NSWSC 54 at [28] (Chen J).

22. [67]

    As contemplated by s 323(4) of the 1998 Act, [11.10] of the Guidelines makes provision for the method of assessment of the deduction. I have set out the terms of [11.10] above at [16]. In Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 (“Pombinho”), the appellant submitted (as summarised by Ward P at [61]) that the process of determining what, if any, deduction was required for pre-existing injury required a comparison between the present impairment and the pre-existing impairment, that is, “a disentanglement between the impairment suffered due to the pre-existing injury and that due to the injury giving rise to the present claim”.

23. [68]

    In Pombinho, the medical assessor had failed to consider relevant material (this was the appellant’s ground 2 before the Appeal Panel), and had not considered whether a s 323 deduction was necessary (this was the appellant’s ground 4 before the Appeal Panel). The appellant contended that in those circumstances the Appeal Panel, having found that those two grounds were established, should not have been required to start with the PIRS assessment that the medical assessor had undertaken, which was limited to the worker’s current condition. In allowing an appeal from the decision of the primary judge that the Appeal Panel had exceeded its jurisdiction, Ward P stated at [86] (White JA and Stern JA agreeing):

24. [69]

    As I noted above, the plaintiff made two complaints to the Appeal Panel about the medical assessor’s approach to s 323 of the 1998 Act: the first was essentially factual, and related to the diagnosis of the plaintiff with bipolar disorder type 1 as a pre-existing condition. The second took issue with his approach to the deduction, specifically, his conclusion that there should be a deduction of 50% of the plaintiff’s assessed WPI percentage.

25. [70]

    In respect of the plaintiff’s challenge to the factual basis of the medical assessor’s assessment, the Appeal Panel stated that the medical assessor “was not bound to accept the opinions of other clinicians, including their diagnoses.” It outlined the evidence upon which the medical assessor based his diagnosis, and continued:

26. [71]

    By these paragraphs, the Appeal Panel addressed the factual issue that the plaintiff had raised. The plaintiff does not contend on this application that it was not open to the medical assessor to diagnose the plaintiff with bipolar disorder type 1 and does not challenge the Appeal Panel’s finding to that effect.

27. [72]

    The Appeal Panel then moved on to consider “whether that disorder contributed to current impairment”, being the second step that Schmidt J identified in Cole and Elcheikh. I have set out the plaintiff’s submissions to the Appeal Panel at [44] above. The Appeal Panel concluded that the medical assessor had not turned his mind to the issue of causation, stating that in order to find that a pre-existing condition contributed to current impairment, a medical assessor must be satisfied that, but for the existence of the pre-existing condition, the current impairment would not be as great as it is, citing Ryder v Sundance Bakehouse [2015] NSWSC 526 (“Ryder”). Nonetheless, the Appeal Panel considered the error was inconsequential because the test in Ryder was, in its view, easily satisfied on the facts, stating at [36]:

28. [73]

    The last two sentences of this paragraph represent a conclusion on the second step. The italicised passage, however, is relevant to the third step, to which the Appeal Panel turned in the following paragraphs:

29. [74]

    The focus of s 323 is the degree of permanent impairment resulting from an injury. Section 323(1) requires a deduction for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality. The exercise to determine the extent of that deduction is provided for in the Guidelines at [11.10], as explained by Ward P in Pombinho. The Secretary did not submit that the decision of Simpson AJA in Marks (No 2), in which her Honour held that [11.10] of the Guidelines was invalid where a pre-existing condition was asymptomatic, applied to the present case, in which the plaintiff was, on the medical assessor’s findings, symptomatic before the onset of the work-related stressors in March 2019.

30. [75]

    In order to ascertain what, if any, proportion of the plaintiff’s current level of WPI was due to her pre-existing condition, the Guidelines required the medical assessor to undertake an assessment of the plaintiff’s pre-injury level of functioning, by reference to the PIRS. If that could not be assessed, the Guidelines prescribed that the deduction was to be one-tenth of her assessed WPI (it was not submitted that this was inconsistent with s 323(2)). The plaintiff’s complaint to the Appeal Panel was that the medical assessor did not approach the issue consistently with the Guidelines. Instead, notwithstanding his conclusion that the extent of the deduction was difficult or costly to determine, he settled on a deduction of 50% on the basis of an assessment on his part of what proportion of her psychological impairment – that is, her injury – could be attributed to her pre-existing condition.

31. [76]

    In oral submissions, counsel for the Secretary submitted that while [39] of the Appeal Panel’s reasons could have been more eloquently expressed, it showed that the Appeal Panel had taken into account the pre-existing condition, considered the overall impairment and had accepted that the two were of equal proportion. The Panel had thereby taken into account what was pre-existing, what the current impairment was, and how the pre-existing condition impacted on the overall impairment. The Secretary submitted in writing that, on the basis of this finding, it was reasonable for the panel to uphold the medical assessor’s s 323 deduction.

32. [77]

    I do not accept that submission. In my view, in dismissing this complaint, the Appeal Panel adopted the same erroneous approach as the medical assessor, focusing on “the contribution to the current injury by the pre-existing bipolar disorder”. So much is clear from the penultimate sentence of paragraph [39] of the Appeal Panel’s reasons, in which the Panel concluded that “the contribution to the current injury by the pre-existing bipolar disorder on the one hand and the psychological injury on the other are about equal”. As the plaintiff submitted, that did not address the issue she had raised, and in any event it was not the right question. In asking itself the wrong question in this regard, the Appeal Panel made a jurisdictional error; it may also be characterised an error of law on the face of the record. I would uphold ground 4.

Conclusion

1. [78]

   That which should be quashed is the order made by the Appeal Panel on 23 November 2023 as encapsulated in the certificate of determination issued by the Personal Injury Commission dated 9 January 2024: State of New South Wales v Wright [2023] NSWSC 757 at [57] (Basten AJ).

2. [79]

   At the hearing, the parties informed me of their agreement that each party should pay their own costs of the application. Accordingly, I make the following orders:

   1. (1)

      Set aside the decision of the third defendant dated 23 November 2023, and the Certificate of the Personal Injury Commission dated 9 January 2024.

   2. (2)

      The matter be remitted to the second defendant for referral to a differently constituted appeal panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to be determined according to law.

   3. (3)

      There be no order as to costs.