Cheers v Mid Coast Council

1. [1]

   BASTEN AJ: The plaintiff, Paul Cheers, has sought judicial review of the decision of a medical appeal panel constituted in the Workers’ Compensation Division of the Personal Injury Commission (Appeal Panel). The subject matter of the appeal was a medical assessment certificate issued on 24 August 2023 by a psychiatrist, Dr Graham Blom, assessing the plaintiff’s whole person impairment as 19%. The Appeal Panel reduced that assessment to 8%.

2. [2]

   For reasons explained below, Dr Blom conducted not one but two consultations with the plaintiff by audiovisual link. His psychiatric assessment required an evaluation of the history taken in those consultations, the self-reported psychological condition of the plaintiff, and inferences to be drawn from the plaintiff’s medical records and other material.

3. [3]

   The primary submission in this Court was that the Appeal Panel had failed to comply with requirements of procedural fairness, and failed to fulfil its statutory function, in assessing the reliability and veracity of the plaintiff without conducting a further consultation. For reasons explained below, that submission should be accepted and the decision of the Appeal Panel set aside.

4. [4]

   Unfortunate as the result may be, given the procedural history, the matter will need to be reconsidered by a differently constituted Appeal Panel, unless the parties reach agreement as to a fair outcome.

Procedural background

1. [5]

   The plaintiff had worked for some 14 years for Mid Coast Council (the employer), until, due to his deteriorating psychological condition, he left work in November 2020. The circumstances of his employment, resulting in a psychological injury, are not presently relevant. Liability was accepted by the employer’s insurer with a deemed date of injury of 22 July 2022, presumably by application of s 15(1) of the Workers Compensation Act 1987 (NSW).

2. [6]

   On 2 December 2022, the plaintiff commenced proceedings in the Personal Injury Commission seeking, among other amounts, lump sum compensation pursuant to s 66 of the Workers Compensation Act, his degree of permanent impairment being in dispute.

3. [7]

   On 20 January 2023, preliminary directions were given and the matter was remitted to the President for referral to a medical assessor. The matter was referred to Dr Blom, but before he commenced his assessment, the employer sought to provide further documentation, including bank statements with respect to the plaintiff’s Commonwealth Bank account from 1 July 2022 until, in broad terms, February 2023, including a summary of the bank statements dated 22 February 2023. It also sought to rely upon a document identified as “fifth surveillance report” and a “photographic schedule” provided by the investigator.

4. [8]

   These documents accompanied a Form 2C “Application to Admit Late Documents”. Precisely what happened to that application is unclear. However, it was common ground that those documents were not with the material provided to the medical assessor when he carried out his examination of the plaintiff (in accordance with s 324(1)(c) of the 1998 Act) on 14 April 2023, nor by the time he issued his medical assessment certificate on 20 April 2023. That certificate resulted in an assessment of whole person impairment of 22%. Although the certificate was replaced by a second certificate, it will be necessary to identify parts of the reasons given by the medical assessor in his first assessment, as the reasoning was not repeated fully in the second assessment certificate.

5. [9]

   On 18 May 2023, the employer lodged an appeal against the decision of the assessor. The document commenced with the following statement:

6. [10]

   There was no demonstrable error on the part of the medical assessor: the error, including no doubt the element of procedural unfairness, was a consequence of an administrative mistake in the section of the Commission responsible for the referral. It might have been thought that the appropriate course was to refer the matter back to the medical assessor for consideration of the additional material. That course was anticipated by the employer.

7. [11]

   Ground 1 of the appeal was headed, “Evidence not referred to the medical assessor”. The employer’s written submissions on this matter ended as follows:

8. [12]

   The plaintiff submitted that the appeal was premature and that the additional materials should be referred to Dr Blom for a reassessment.

9. [13]

   On 4 July 2023, the Commission directed that “a further preliminary conference should be scheduled so that the parties can make submissions regarding the admission of late documents and the referral of the matter back to the MA as an alternative to an appeal. This will be quicker, more cost effective and will avoid the delays occasioned by an appeal”. On 7 July 2023 the Commission determined that the matter should be referred back to Dr Blom as it was appropriate that the medical assessor had before him a complete picture of the treatment history, and that a reconsideration would preserve the parties’ appeal rights.

10. [14]

    Accordingly, the matter went back to Dr Blom who conducted a further mental state examination and issued a second certificate dated 24 August 2023 (second certificate). The medical assessor reduced the whole person impairment to 19%, on the basis that the plaintiff had a greater ability to travel than had previously been assessed.

11. [15]

    On 21 September 2023, the employer filed an appeal against the second certificate. On 26 October 2023, the Commission determined that the appeal should be referred to a medical appeal panel on the basis of the ground identified in s 327(3)(c) as “incorrect criteria”, identified by reference to the assessment of “social functioning” under the Psychiatric Impairment Rating Scale (PIRS). Although nothing turns on it, there was no contention that the medical assessor had applied incorrect criteria: rather his factual assessment of the level of impairment was challenged. In any event, the whole of the appeal was before the Appeal Panel.

12. [16]

    The decision of the Appeal Panel was delivered on 15 January 2024. The Panel conducted a “preliminary review” in the absence of the parties and determined that “it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal”.

13. [17]

    The Appeal Panel also noted that the appellant sought to appeal both the first and second medical assessment certificates. The interrelationship of the two certificates was not discussed by the Panel, and there is a degree of ambivalence in the legislative scheme as to the correct approach. Thus, s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Workplace Injury Act) appears to require that there can be only one medical assessment certificate with respect to the degree of permanent impairment of an injured worker. That provision is said not to affect the operation of the appeal provisions, but does not expressly refer to a referral for reconsideration pursuant to s 329, as occurred in this case. Section 329(2) appears to accept the continuing operation of an earlier certificate but states that the later certificate “prevails over any previous certificate as to the matter [referred] to the extent of any inconsistency”. The Appeal Panel dealt with the matter by revoking both the certificates of Medical Assessor Blom and issuing a new certificate on 15 January 2024 identifying the degree of permanent impairment as 8%.

14. [18]

    Having outlined the relevant procedural background, it is convenient to turn to the substance of the Appeal Panel’s reasons in addressing the grounds of review.

Grounds for judicial review

1. [19]

   It should not be necessary to state that the exercise of this Court’s judicial review function under s 69 of the Supreme Court Act 1970 (NSW) is limited to review for error of law on the face of the record (assuming no privative provision) or jurisdictional error. Neither the grounds in the summons (and the amended summons which did not amend the grounds), nor the plaintiff’s initial written submissions clearly were confined to such errors. So much was noted by the defendant employer in its written submissions. As the defendant further noted, to the extent that ground 3 identified a “breach of natural justice” there was a lack of clarity as to how that breach, and the breaches in the earlier grounds, were properly so described. In his submissions in reply, filed on 14 October 2024, the plaintiff proffered three redrafted grounds, which were incorporated into a further amended summons provided to the Court, with leave, at the hearing. [1] Those grounds were as follows:

2. [20]

   These grounds encompassed two propositions:

3. [21]

   The first ground contained two limbs. The first limb concerned assessing the credibility of the plaintiff. The second concerned the clinical assessment of psychological injury without a consultation with the injured person. Only the former falls within the conventional understanding of procedural unfairness, but importantly, even that element is conditioned by the context, namely a medical assessment in a clinical setting. That is not an adversarial proceeding, but rather the plaintiff giving an oral account of his circumstances and being questioned by a psychiatrist.

4. [22]

   The subject-matter of a “medical assessment” is dealt with in Pt 7 of the Workplace Injury Act. A medical assessment is undertaken with respect to a “medical dispute” which is a dispute, relevantly for present purposes, in respect of “the degree of permanent impairment of the worker as a result of an injury”: s 319(c). Medical assessments are undertaken by medical assessors appointed by the President: s 321. The powers of a medical assessor are identified in the following terms:

5. [23]

   Importantly for present purposes, the powers of the medical assessor are conferred on each medical assessor on a medical appeal panel, but not on the appeal panel as such. Those powers are further defined as follows:

6. [24]

   This legislative scheme is analogous to that established in Victoria and considered by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak. [2] Noting that the standard required of a written statement of reasons to be given by the panel was to be determined by reference to the functions of the panel, the Court stated:

7. [25]

   This statutory scheme conditions the scope of the obligation to accord procedural fairness. Although the analogy is by no means perfect, the principles stated by the High Court in Minister for Immigration and Border Protection v WZARH [3] provide guidance. The applicant was an asylum seeker from Sri Lanka of Tamil ethnicity, who sought a protection visa under the Migration Act 1958 (Cth). He was interviewed by a delegate of the Minister, who made an adverse assessment of his claim. He sought independent merits review where the reviewer’s role was to undertake a fresh hearing of his claims and make a recommendation to the Minister. That officer commenced, but did not complete the review, and the matter was transferred to another reviewer, who made an adverse recommendation. The first reviewer interviewed the applicant, the second did not. The second relied upon the written application and the recording and transcript of the interview with the first officer. The second reviewer formed an adverse view of the credibility of the respondent, on the basis of his inconsistent accounts of his activities. The applicant’s challenge to the process was upheld by a Full Court of the Federal Court and the Minister’s further appeal was rejected by the High Court.

8. [26]

   There were two sets of reasons in the High Court; the reasons of Kiefel, Bell and Keane JJ included the following observations:

9. [27]

   Gageler and Gordon JJ, writing separately but to the same effect, stated:

10. [28]

    It is no doubt true that the assessment of a psychological injury is not the same exercise as determining whether a person has a well-founded fear of persecution in his country of nationality. On one view, however, the nature of a clinical assessment provides a more powerful case for a face-to-face consultation between the worker and the psychiatrist. There may be cases in which a psychiatric assessment can be made on the papers, but that course would not be reasonable unless it were necessary. There was no such necessity in the present case. Rather, the fact that the Medical Assessor Blom conducted an examination on each occasion demonstrates that fairness at least will generally require such a process.

11. [29]

    Further, as the applicant submitted, this Court has, on more than one occasion, noted the significance of clinical observations. In Jenkins v Ambulance Service of New South Wales, [4] Garling J stated:

12. [30]

    To similar effect, in Ferguson v State of New South Wales, [5] Campbell J stated:

13. [31]

    These principles were not challenged by the defendant and should be accepted and applied.

14. [32]

    Before turning to an analysis of the reasons of the Appeal Panel, and so that that can be done once with respect to both grounds of appeal, it is convenient to set out the relevant principles applicable to the second aspect of the plaintiff’s case in this Court.

15. [33]

    The failure to address one side of the dispute in a contested adversary situation may give rise to jurisdictional error, but the nature of the ground has been differently stated in different cases, suggesting a danger in broad generalisations as to its application. One important variable is the nature of the tribunal and its statutory functions. It may also be necessary to understand why a tribunal has taken a particular approach.

16. [34]

    In its broadest form, and not without uncertainty as to the underlying concept of “jurisdiction”, it may be described as a “constructive failure to exercise jurisdiction”. For example, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, [6] Gaudron J stated:

17. [35]

    In Dranichnikov v Minister for Immigration and Multicultural Affairs, [7] Gummow and Callinan JJ stated:

18. [36]

    In the same case, Kirby J stated:

19. [37]

    Finally, Hayne J stated, in agreeing with Gummow and Callinan JJ, that the Tribunal “failed to exercise its jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making and had earlier made, for protection”. [9]

20. [38]

    In other circumstances, the complaint may be that the Tribunal has failed to exercise its jurisdiction by failing to take into account a mandatory consideration. That too can give rise to matters of degree, which may be reflected in the phrase used earlier in these reasons, namely the failure to accord one party “proper, genuine and realistic” consideration of his or her claim. [10]

21. [39]

    In the present case, there was considerable overlap between the two grounds articulated above. An example will suffice to make the point. Thus, in dealing with ground 1 of the appeal by the employer to the Appeal Panel, the plaintiff submitted that there had not been inconsistency between his presentation and the objective documentary evidence. Whilst a medical report from Dr Bisht concluded that there were considerable concerns that the plaintiff had been “overstating or exaggerating his symptoms”, the medical assessor had undertaken an examination and review of the material and formed a different opinion. The objective evidence was not sufficient to “overturn credibility-based findings” and the medical assessor made “an evaluative finding, open to the assessor”. Clearly, issues of credibility are directly relevant to the assessment of a psychological condition. This factor was relied on by the plaintiff to reinforce his case for review.

22. [40]

    It is convenient next to turn to the structure of the Appeal Panel’s reasons.

Reasons of the Appeal Panel

1. [41]

   A number of matters of background and procedure were set out by the Appeal Panel in pars 1-16 of the reasons. The employer’s grounds were then summarised in the following terms:

2. [42]

   The plaintiff made two observations in relation to these paragraphs. First, the summary of the appeal grounds constituted an acknowledgment that the appeal involved fundamentally a challenge to the plaintiff’s credibility. Secondly, the plaintiff noted that par 18 was the only reference by the Appeal Panel to his submissions. (There was one later reference to “the respondent’s submissions”, at par 87, but that was a typographical error, and the intended reference was to the appellant’s submissions.)

3. [43]

   More generally the plaintiff submitted that, even in addressing the employer’s submissions, the Appeal Panel made no explicit reference to the fact that it was overturning both credibility findings and assessments made by a psychiatrist in a clinical setting. Nor did the Panel address the level at which a difference of opinion on such matters might properly amount to determination of “demonstrable error”, being the relevant statutory ground of appeal.

4. [44]

   Turning back to the structure of the Appeal Panel’s reasons, pages 3-13 set out lengthy extracts from the two sets of reasons given by the medical assessor. At pages 13-18 the Panel set out the employer’s submissions on the appeal, other than those in respect of the four categories, the subject of challenge which were separately addressed from pages 18-26. As has been noted, at no point (other than par 18) were the plaintiff’s submissions addressed, or even referred to.

5. [45]

   The Panel accepted the unchallenged elements of the Guidelines dealing with psychological/psychiatric injury by reference to whole person impairment, [11] that the appropriate psychiatric diagnoses were (i) alcohol abuse disorder – probable dependence, and (ii) major depressive disorder with anxious distress. The impairment was identified as permanent.

6. [46]

   The Guidelines provide six categories for psychiatric impairment rating, with particular scores available for each, depending upon the degree of impairment. As noted above, these are referred to as the Psychiatric Impairment Rating Scales (PIRS). The ratings under challenge fell within four categories, namely (i) social and recreational activities; (ii) concentration, persistence and pace; (iii) social functioning and (iv) employability. The Appeal Panel dismissed challenges with respect to the rating relating to social functioning and employability, but upheld the appeal with respect to the ratings for the other two categories.

7. [47]

   Ground 1 in the employer’s appeal was headed “Inconsistent presentation”. The substance of the ground was two-fold. First, it relied upon the incorrect history originally given to Dr Blom in relation to ability to travel; secondly, it suggested that exaggeration or misleading statements were more plausible explanations for the differences in assessment as between the assessor and Dr Bisht, rather than any deterioration in the plaintiff’s symptoms. The error was identified as a failure on the part of the medical assessor “to consider and assess whether the medical evidence based on the unreliable Respondent’s subjective histories (which were repeatedly contradicted by the surveillance evidence and bank statement transactions), along with the Respondent’s false history about his ability to travel to Tweed Heads, appeared insufficient to verify that an impairment of a certain magnitude existed, and to then consider modifying the impairment ratings accordingly”. [12] As the submissions recognised, it was not that the medical assessor did not address the inconsistencies: rather, the error appears to have been a failure to adopt a particular conclusion as to the plaintiff’s reliability and veracity.

8. [48]

   These challenges were directly relied upon “[i]n the alternative” in addressing the specific assessments under the PIRS, in separate grounds.

9. [49]

   So far as the general complaint of inconsistent presentation was concerned, the plaintiff submitted that to the Appeal Panel that the medical assessor did not merely reject Dr Bisht’s opinions in material respects, but considered Dr Smith’s opinions to be more reflective of his own. Further, the plaintiff characterised the employer’s submissions as assuming that he was a liar and had “dishonestly sought to magnify any injury related illness for financial gain”. This was said to involve a “serious finding” not supported by the evidence. Importantly for present purposes, the plaintiff submitted that “the surveillance and bank records do not establish ‘incontrovertible facts’, ‘uncontested testimony’, ‘glaring improbab[illities]’, or ‘contrary compelling inferences’”, which were said to be necessary “to overturn credibility based findings – at least in a court of law”. [13] The submissions further described Dr Blom’s finding as to the additional evidence and how it reflected on the plaintiff’s reliability as “an evaluative finding, open to the assessor”.

10. [50]

    Similar submissions were made with respect to other grounds. With respect to social and recreational activities (employer’s ground 2) the plaintiff responded that the conclusion reached by the medical assessor was the exercise of a “function peculiar for the MA” and was based on “a credit finding and should not be disturbed on the basis of equivocal evidence”. [14]

11. [51]

    Relevantly for present purposes, the plaintiff’s submissions thus directly took issue with the employer’s attempt on the appeal to overturn the medical assessor’s findings as to reliability and credibility.

12. [52]

    As this Court has noted on several occasions, the PIRS involve descriptive language with no precise standard and requiring evaluative judgment by the medical assessor. Further, the Guidelines state: [15]

13. [53]

    The criteria were noted by the Appeal Panel as follows:

14. [54]

    In the 21 paragraphs that followed, the Appeal Panel commenced by stating:

15. [55]

    At par 66, the Appeal Panel stated, “we agree” (with the employer) that a Class 2 rating is appropriate.

16. [56]

    The reasoning process is not clearly structured, but may be broken down into a number of elements. The broad proposition for which the plaintiff contends in this Court involves two elements, namely that (i) the “objective” facts did not necessarily give rise to inferences adverse to his evidence, and (ii) such inferences should have been put to him in a clinical assessment, before drawing an adverse conclusion as to his veracity.

17. [57]

    In many respects, the reasoning of the Appeal Panel has the flavour of a legal analysis rather than a clinical assessment: there is little resemblance to an expert psychiatric assessment. It is necessary to explain that feature as it is fundamental to the plaintiff’s claim of jurisdictional error.

18. [58]

    That characterisation follows in part from the Panel’s frequent and express acceptance of the employer’s submissions. This reasoning is to be contrasted with that of the medical assessor who, in his first assessment, set out in detail the history relating to the injury, the plaintiff’s present treatment and present symptoms and provided his own assessment of matters involving social activities, referred to his ability to travel, his recreational activities and his concentration and memory. He further set out his findings on his mental state examination. Dr Blom explained the points of difference between his assessment and that of Dr Bisht, as well as the extent to which he agreed with Dr Glenn Smith. His disagreement with respect to Dr Bisht’s Class 2 category for “social and recreational” was in the following term:

19. [59]

    Self-evidently, the Appeal Panel was not able to reason in a similar way in its determination with respect to social and recreational activities. It had not conducted a clinical assessment of the plaintiff and was therefore not able to assess his presentation at that time against the independently known circumstances.

20. [60]

    Two further aspects of the reasoning with respect to “social and recreational activities” should be noted. The first concerned the employer’s reliance upon what was identified as the “fifth surveillance report”. In a passage set out in full by the Appeal Panel, but referred to only in part in the course of its own reasoning, the medical assessor had addressed the surveillance report. Curiously, in the Appeal Panel’s reasons, this passage was recorded as the assessor dealing with “the additional medical evidence” although it only gained that quality from the first sentence, noting that Dr Bisht had placed “a substantial weight upon the surveillance reports supplied”. The assessor had continued:

21. [61]

    The Appeal Panel appears to have taken issue with this assessment of the surveillance material, stating:

22. [62]

    This reasoning does not reflect a psychiatric assessment. The first clause in this sentence appears to be a reference to the appellant’s submissions, as no prior finding by the Panel was identified. The full passage in the assessor’s report (only two sentences of which were set out by the Appeal Panel in this part of its reasons) was not consistent with the assessor having ignored other information or material. As to the second half of the sentence, to state that it is “not necessarily the duration of the footage that is significant but its content”, does not demonstrate error on the part of the medical assessor absent some explanation as to the significance of the content which he had patently omitted. The content was described by the employer in its written submissions in the following terms: [16]

23. [63]

    Other references to the content took the matter no further, although the reference to a conversation whilst at One Mile Beach with “an unidentified member of the public” could only have been included in the submissions by ignoring the assessor’s evidence that he had raised the incident with the plaintiff, who had identified the person as his former yoga teacher. If something more was to be made of this evidence, it was necessary for the plaintiff to be asked about the particular events. When the assessor stated that the surveillance evidence did not identify anything not previously known, it may be assumed that some level of recreational activity had been accepted and that the plaintiff was not so totally isolated that he spoke to no-one in public at any time. For example, the assessor had stated in his first report that the plaintiff had a pet dog and “walks him most days”.

24. [64]

    The plaintiff’s point was not that the employer was not entitled to challenge the assessor’s reasoning as to the plaintiff’s level of social and recreational activity, but rather that for the Appeal Panel to find that there was demonstrable error, it should have undertaken its own clinical assessment, and thus questioned the plaintiff about aspects of, for example, the surveillance material, which had either not been addressed or not adequately addressed by the medical assessor.

25. [65]

    The second aspect of the Appeal Panel’s assessment turned on the bank records which had not been before the assessor on the first occasion. This the Panel described as “the most revealing evidence”. The passage in the medical assessor’s second report which dealt with this material read as follows:

26. [66]

    The evidence about traveling led the assessor to reduce the allowance for that separate category of ratings, as to which there was no challenge. The Appeal Panel then observed:

27. [67]

    There may have been substance to the employer’s complaint which was, in effect, that the medical assessor had not dealt with sufficient thoroughness with the implications to be drawn from the bank statements. However, the bank statements recorded certain things, such as the use of a card to purchase goods, or possibly services, at particular locations. So far as attendance at pubs and licensed clubs was concerned, it is to be recalled that the plaintiff has a serious problem with alcohol and, as Dr Blom recorded in his first assessment, by 2021 he was drinking every day. In August 2022, Dr Bisht recorded Mr Cheers reporting the consumption of between 12 and 17 stubbies of beer each day. There is obviously a difference between spending two hours in the front bar of a busy pub and five minutes collecting takeaway alcohol from a drive-in outlet at the same pub. Small payments, of which there were a number, may simply indicate the purchase of a takeaway coffee. The bank records were silent as to such matters. Whether they were explored by the medical assessor but not recorded in his assessment, or whether the plaintiff was simply not asked about such records, is not known. The reliance by the employer (in his submissions to the Appeal Panel) on pubs and clubs being busy on a weekend contained implicit assumptions about the nature of the activity engaged in at those places. Those matters should have been explored with the plaintiff in a clinical assessment before any conclusion was drawn as to whether there was inconsistency between matters which were revealed by the bank records and his claims to the medical assessor.

28. [68]

    The second matter as to which the employer’s submissions were accepted by the Appeal Panel concerned the Class 3 rating in this category. The Appeal Panel set out the relevant descriptors in the Guidelines:

29. [69]

    Having set out those aspects of the Guidelines, the Panel noted (at par 85) the employer’s submissions that the information the plaintiff gave to the medical assessor was “entirely subjective and not reliable”. The employer added that the assessor “ought to have given greater weight to the actual clinical observations”. The employer’s submissions, identifying alleged inconsistencies and unreliability on the part of the plaintiff, including his “false history” about his ability to travel were set out. The Appeal Panel then stated:

30. [70]

    The plaintiff submitted, without contradiction, that that passage referred back to comments made in relation to the surveillance material in these terms:

31. [71]

    The reasoning in respect of the PIRS criterion as to concentration, persistence and pace continued:

32. [72]

    The reliance on bank records at par 88 concerned the plaintiff’s reliability or veracity. With respect to the assessment process itself, the error on the part of the medical assessor is implicit rather than explicit. That is a significant matter: such an assessment was quintessentially a matter for the clinician undertaking the assessment. The assessor’s findings on the first mental state examination after providing a physical description of the plaintiff continued:

33. [73]

    In respect of the second mental state examination, the assessor stated:

34. [74]

    It is by no means self-evident that these descriptions are inconsistent with the description of Class 3 set out above.

35. [75]

    Further, the category of concentration, persistence and pace must clearly overlap with that of “employability”, as to which the medical assessor considered that “for the foreseeable future he is not capable of any form of employment”. With respect to employability, the employer had urged acceptance of the opinion of Dr Bisht who considered the plaintiff would be able to work four hours a day, four days a week on a vocation that “requires him to perform simple tasks, and does not require him to have interaction with customers/clients”. The Panel rejected that aspect of the appeal stating:

36. [76]

    That proposition was correct as a matter of legal principle, but contrasts with the findings of the Appeal Panel as to Dr Blom’s assessment of other matters, almost entirely based on its assessment of the plaintiff’s veracity and reliability, based on the documentary analysis provided by the employer.

37. [77]

    Those factors effectively address both aspects of the plaintiff’s case set out at [20] above. The plaintiff’s submissions in response to the employer’s appeal to the Appeal Panel responded to both the substance of the inferences sought to be drawn by the employer and the proposed findings as to his reliability and credibility. Given the manner in which the Appeal Panel reached its own findings, it must be inferred that members of the Panel simply disregarded the plaintiff’s submissions. However, because, for the reasons set out above, the approach adopted by the plaintiff should have been accepted by the Appeal Panel, and not merely considered, it is not necessary to address the second basis of the challenge in this Court further.

Findings

1. [78]

   First, in response to the plaintiff’s case in this Court, the employer submitted that, knowing of the submissions which the employer had made in support of its appeal to the Appeal Panel, the plaintiff was at fault in not seeking a further clinical assessment. However, it was not necessary for the plaintiff to take steps to assist the employer in making out its case. The employer also knew of the basis of its appeal and, if it had concluded, as it should have, that the challenges to the veracity and reliability of the plaintiff required, both as a matter of procedural fairness and as a matter of clinical assessment, a further examination by the Appeal Panel (or a medical member thereof) carrying out the review, then it should have taken steps to request a further consultation and clinical assessment. It did not do so.

2. [79]

   Accordingly, the employer bore at least part of the responsibility for the appeal proceeding in circumstances where many, if not most, of its challenges could not be successful, absent that procedural step. The fact that the Appeal Panel itself thought it unnecessary to carry out a further clinical assessment demonstrated a misunderstanding of its function.

3. [80]

   Secondly, the employer submitted that the Appeal Panel was not only entitled, but required, to “form and give its own opinion on the medical question referred to it by applying its own medical experience and medical expertise”, referring to Queanbeyan Racing Club Limited v Burton. [17] That proposition may be accepted, but in truth the exercise which the Appeal Panel undertook was closer to that of a legal tribunal assessing the veracity of a witness. For that purpose, the Appeal Panel assumed that bank records constituted objective evidence of events which occurred without identifying precisely what those events were and without inquiring of the worker as to whether their assumptions were correct. The medical question, involving a psychological assessment of the plaintiff, required that a clinical examination be carried out in the circumstances of the case.

4. [81]

   Thirdly, with respect to the failure to address the plaintiff’s submissions, the employer contended that the Panel’s obligation was to provide reasons for its decision, not to refer to every piece of evidence before it. That proposition may be accepted: however, it was necessary for the Appeal Panel to apply that principle to the reasons of the medical assessor, before determining whether or not his findings revealed demonstrable error in his assessment of the intensity of the psychological impairment. That it did not do.

5. [82]

   Fourthly, the employer relied upon what was described as a “concession” by the medical assessor that the worker had misled or deceived him with respect to his driving capacity. That term, which was also used by the Appeal Panel, tended to confirm an incorrect approach to the resolution of the medical question. The medical assessor was not a party who made concessions against interest: he was exercising medical expertise in assessing the evidence given by the plaintiff, including the plaintiff’s concession that he had driven significant distances on one or two occasions. The medical assessor, appropriately, concluded that he had been “misled” and corrected his assessment accordingly. It did not follow, however, that he was required to reject other evidence given by the plaintiff. It might have been an error if he had not reconsidered the plaintiff’s veracity, but he did so and stated that he was otherwise satisfied that the plaintiff was generally truthful. Indeed, the medical assessor noted that the plaintiff had demonstrated an understanding of the PIRS Guidelines, a factor which he, as an experienced medical assessor, no doubt understood to be a basis for approaching with caution statements by a person who had a motive to satisfy a particular guideline and knew what was required.

6. [83]

   Fifthly, whilst acknowledging that an expert assessment by a psychiatrist is far removed from an adversarial process, I accept the plaintiff’s submission that to uphold challenges to the veracity and reliability of the plaintiff, the Appeal Panel was required to undertake its own examination of him, in accordance with s 328(2A) of the 1998 Act. That was a requirement of the obligation to afford the plaintiff procedural fairness. The reasons for such a requirement were explained by the High Court in WZARH in the passages set out above.

7. [84]

   Sixthly, that conclusion is reinforced by the fact that the Appeal Panel was a “medical” appeal panel, and was reviewing a clinical assessment undertaken by a psychiatrist in order to identify whether there was demonstrable error in his evaluation and judgment. That exercise would not in all cases require a further examination of the claimant, but the nature of the challenges raised by the employer in this case did necessitate the taking of that step. In failing to take that step the Appeal Panel constructively failed to exercise its proper function in accordance with its statutory mandate. Its determination must be set aside.

Parties

1. [85]

   One further procedural matter should be noted. The plaintiff, in his summons, identified the members of the Appeal Panel by name. Although the inappropriateness of that course was noted by the Court of Appeal in Campbelltown City Council v Vegan, [18] an otherwise much quoted judgment, the practice appears to have become commonplace. Why is unclear, but it is clearly wrong. So much was stated by Barwick CJ more than 50 years ago in Brown v Rezitis. [19] The point was reiterated and applied by the Court of Appeal in Kerr v Commissioner of Police and Crown Employees Appeal Board, in relation to the Commissioner of Police. [20] It was repeated more recently by McHugh J in Re Ruddock; Ex parte Reyes [21] in the following terms:

2. [86]

   Accordingly, the names of the persons constituting the Medical Appeal Panel should be deleted and replaced with the name of the body, even though not a legal entity in its own right. There should be a direction to that effect, which will hopefully remind members of the profession as to the correct practice.

Orders

1. [87]

   The Court makes the following orders:

   1. (1)

      Direct that the names of the persons constituting the Medical Appeal Panel be deleted as parties to the proceedings and the second defendant be identified as the “Medical Appeal Panel”.

   2. (2)

      Set aside the Medical Assessment Certificate issued by the Medical Appeal Panel and dated 21 December 2023 and set aside the determination of the Medical Appeal Panel dated 15 January 2024.

   3. (3)

      Direct that, unless the parties resolve their medical dispute, the third defendant refer the first defendant’s appeal to a medical appeal panel, differently constituted.