Versace v Australia’s Best Tyres & Auto Pty Limited

1. [1]

   Mr Versace was injured at work in 2012, suffering permanent impairment as a result. He now seeks orders under s 69 of the Supreme Court Act 1970 (NSW), setting aside a medical assessment certificate and statement of reasons for a decision given about the nature and extent of his psychological injury by a Medical Appeal Panel of the Workers Compensation Commission of New South Wales under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The result of the Panel’s decision was that Mr Versace is not entitled to either compensation or damages under the Workers Compensation Act 1987 (NSW) for his impairment.

2. [2]

   It is common ground that the Court has no power to entertain a merits review of the Appeal Panel’s decision. In issue is whether Mr Versace’s application, in truth, concerns jurisdictional error or error on the face of the record amenable to relief under s 69.

3. [3]

   Mr Versace’s summons advances complaints about misapplication of the law; failure to afford him procedural fairness; the Panel’s alleged failure to perform its statutory task; its failure to have regard to relevant considerations; failure to give adequate reasons; making erroneous findings; reaching erroneous conclusions; and issuing a certificate and reasons which were illogical, irrational and legally unreasonable.

4. [4]

   Mr Versace notified Australia’s Best Tyres of his injuries in November 2012. Its insurer declined liability for his claims in April 2013 on the ground that he had suffered no injury arising out of his employment. In September 2014 he sought a review of that decision and also brought a claim for lump sum compensation under the Workers Compensation Act on the basis of the assessment of the psychiatrist, Dr Rastogi. In July 2015 he made an application to the Workers Compensation Commission to resolve a dispute over that claim.

5. [5]

   Mr Versace’s claim was that he had suffered injuries at work to his cervical spine, left upper extremity and right eye, as well as a psychological injury. In August 2015, following a conference before an arbitrator, certain consent orders were made by the Commission about the injuries to Mr Versace’s spine and his eye. He was then referred by a Registrar’s delegate to an approved medical specialist for assessment of the extent of the impairment resulting from the injury to his left upper extremity and his psychological injury, there remaining a dispute over that aspect of his claims.

6. [6]

   Under s 322 of the Workplace Injury Act the medical specialist assessed Mr Versace’s psychological injury in accordance with the February 2009 WorkCover Guides for Evaluation of Permanent Impairment (“Guides”) which establishes a “Psychiatric Impairment Rating System” (“PIRS”). The PIRS specifies a number of categories of daily functioning, each to be assessed by reference to a level, classes 1 to 5. The higher the level, the greater the level of the impairment.

7. [7]

   The result of the medical specialist’s assessment was a conclusion that Mr Versace had suffered gross impairment totalling 17%, from which a one-tenth deduction was made for a partial contribution to his psychological injury, of chronic pain from the limb injury. The result was a finding of total impairment of 15%.

8. [8]

   The insurer challenged this assessment under s 327(3)(c) and (d) of the Workplace Injury Act, claiming that it had been made on the basis of incorrect criteria and contained demonstrable errors. The Registrar’s delegate concluded under s 327(4) that on the face of its application and submissions, at least one of the grounds of appeal had been made out. Section 329 allowed the Registrar to refer Mr Versace back to the approved medical specialist for reconsideration, but that discretion was not exercised.

9. [9]

   The appeal was thus referred to the Appeal Panel, whose functions were those specified by s 328(2), namely to review the original medical assessment, that review being limited to the grounds of appeal on which the appeal is made, in accordance with procedures provided by the Workers Compensation Guidelines (provided for by s 331).

10. [10]

    The written submissions the insurer advanced to the Appeal Panel related to the categories, self-care and hygiene; social and recreational activities; concentration, persistence and pace; employability; and to s 322. Its case on concentration, persistence and pace was that the medical specialist had not undertaken a cognitive assessment, which was factually incorrect. Submissions were advanced in relation to identified medical assessments in evidence. It submitted that on all available medical evidence the assessment of concentration, persistence and pace should have Class 2, not Class 3 as the medical specialist found.

11. [11]

    Mr Versace opposed the appeal. In his written submissions, issue was taken with what the insurer had submitted that the identified medical assessments had shown. His case was that the grounds of appeal were not made out, and that the insurer’s submissions were inconsistent with the medical and factual evidence.

12. [12]

    Neither party sought either an oral hearing before the Appeal Panel, or a further examination of Mr Versace by the Panel. The Panel also considered it unnecessary to examine Mr Versace itself, advising the parties on 1 February 2016 of its preliminary view that “no further medical examination is required because the reasons on the face of the MAC are clear and the evidence for and against the propositions raised in the appeal are already identified. No grounds or reasons based purely on clinical findings arise.”

13. [13]

    The Panel did not revisit that conclusion and determined the appeal on the basis of the material available to the medical specialist, his reasons and the cases advanced by the parties in their written submissions.

14. [14]

    On 4 February 2016 the Panel gave reasons for its decision to revoke the medical specialist’s certificate. The Panel concluded that the medical specialist had not erred in his assessment, other than in relation to Mr Versace’s level of impairment with respect to the PIRS category “concentration, persistence and pace”.

15. [15]

    The result of the Panel’s correction of that error was that Mr Versace’s gross impairment was reassessed to be 15%. With an accepted reduction of one tenth for his pre injury impairment, Mr Versace’s injury related impairment was thus reduced to 14% and the Panel issued a new certificate to that effect. In the result Mr Versace is not entitled to compensation or damages under the Workers Compensation Act, given the 15% threshold stipulated by ss 65A(3) and 151H.

16. [16]

    Mr Versace’s case is that the reasons given by the Panel for its decision reveal the errors into which it fell. That the Panel fell into any error amenable to relief in these proceedings, is in issue.

The medical specialist’s decision

1. [17]

   In order to resolve what is in issue, it is necessary to consider the role of medical specialists under this statutory scheme and the reasons which the medical specialist gave for the conclusions which he reached, having himself examined Mr Versace.

2. [18]

   Approved medical specialists are appointed under s 321 of the Workplace Injury Act to deal with medical disputes, which are in s 319 defined to mean:

3. [19]

   In his reasons, the medical specialist noted that the dispute referred to him for assessment in relation to Mr Versace was:

4. [20]

   The medical specialist was obliged to undertake his assessment of Mr Versace’s impairment in accordance with clause 11.7 of the Guides, which provide:

5. [21]

   The assessment had to be undertaken by reference to categories specified in tables provided at 11.1 to 11.6 of the Guides. Table 11.5 provides a psychiatric impairment scale for the category “concentration, persistence and pace”.

6. [22]

   Clause 11.12 required that the behavioural consequences of Mr Versace’s psychiatric disorder be addressed by reference to six items which assess an area of functional impairment, namely “self care and personal hygiene; social and recreational activities; travel; social functioning (relationships); concentration; and employability”. Clause 11.13 required:

7. [23]

   The medical specialist concluded that Mr Versace was permanently impaired and that the correct classification of his impairment in respect of the description for the “concentration, persistence and pace” category was Class 3. The employer’s case on appeal was that it ought to have been Class 2.

8. [24]

   The medical specialist was obliged to give reasons for his conclusions as to the matters in dispute (s 325(2)(c)). The reasons given included a brief history of the incident; Mr Versace’s symptoms, as well as subsequent events, including the treatment he received; the assessor’s findings; a summary and diagnosis; an evaluation of his permanent impairment; the facts on which the assessment of his whole person impairment was based; and the reasons for the assessed deductions for previous injury, conditions or abnormality. The medical specialist also issued a medical assessment certificate and a “PIRS Rating Form”.

9. [25]

   The history the medical specialist noted Mr Versace had given was:

10. [26]

    The medical specialist also noted the ongoing treatment Mr Versace was receiving for depression and his deteriorating psychiatric condition, observing:

11. [27]

    The reports in evidence included that of the treating psychologists and psychiatrists. Dr Synnott, who saw Mr Versace on 8 January 2013, diagnosed him to be suffering an adjustment disorder with anxiety and depressive mood. He considered that Mr Versace’s desire to return to work revealed that he had a constructive attitude, but that a return to his employment would see a deterioration in his psychological state. A gradual return to other work was recommended. Mr Versace later retrained. In August 2013, Dr Rastogi considered that Mr Versace had moderate impairment in the concentration, persistence and pace category, having difficulty following complex instructions due to severe anxiety and being unable to read or watch TV due to agitation.

12. [28]

    In his April 2015 report, the treating psychiatrist Dr Ryan advised that Mr Versace was reasonably functional, but should contain his work hours to 16 per week. In his June 2015 report the treating psychologist Mr Albassit described Mr Versace’s worsening symptomology over two years and his then “limited capacity for concentration with diminishing short term memory”.

13. [29]

    After referring to Mr Versace’s then general health, work history, social activities and employment of 20 to 25 hours per week in “very basic customer service role in a real estate office, in which he seemed to be working to his full capacity”, the medical assessor made findings about his mental state examination, observing:

14. [30]

    In his summary the medical specialist considered Mr Versace’s appropriate diagnosis to be a persistent depressive disorder, observing that whilst at times irritable and irascible, Mr Versace seemed to be a coherent and legitimate historian.

15. [31]

    In relation to the concentration, persistence and pace classification, the medical specialist recorded in the PIRS rating form an assessment of Class 3, noting “[p]oor performance on cognitive assessment; forgetful; difficulty persisting at tasks; unable to read beyond a paragraph”.

16. [32]

    This conclusion was amongst those challenged on the appeal.

Did the Appeal Panel adhere to its statutory task?

1. [33]

   Section 328 of the Workplace Injury Act provides:

2. [34]

   The available grounds of appeal are those specified in s 327(3), namely:

3. [35]

   The nature of an appeal under s 328(2) “by way of review” was considered in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. It was there held at [100] to be “a novel form of appeal”, the legislature having created a flexible model which involves either a hearing de novo, (that is when new evidence is received because of changed circumstances, for example (see at [96] - [98]); or a rehearing, (which involves identification and correction of error (see at [95]).

4. [36]

   It was there also held at [101] that “while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard.” Section 328(2) was, however, later amended to confine the grounds of appeal which a Panel may consider, to those pursued by the appellant.

5. [37]

   In the result, in Mr Versace’s case, if further evidence had been received on appeal, including if the Panel had considered it necessary itself to examine him, then the Panel would have been obliged to determine whether that material affected the conclusions reached by the medical specialist, conducting the assessment “anew” (Siddik at [97]).

6. [38]

   Had the Panel received such new evidence, so that it had to conduct such an assessment in the course of the appeal, the provisions of s 324(3) of the Act would have come into play. That gives approved medical specialists who are members of a Panel assessing a medical dispute in the course of an appeal, “all the powers of an approved medical specialist under this section on an assessment of a medical dispute”. Those powers are specified by s 324(1) to be to:

7. [39]

   It follows that because that the Panel did not receive new evidence, its role on this appeal were not those of a medical specialist under s 324(1), but rather to deal with and correct alleged error raised by the appeal. In undertaking that task it could not simply substitute its own view for that of the medical specialist, absent a finding of error of the kind alleged on the appeal.

8. [40]

   Siddik was referred to in the reasons given by the Panel for its decision. It observed:

9. [41]

   In issue was whether in so approaching its task on this appeal, the Panel had erred and whether in the course it pursued, it had denied Mr Versace procedural fairness.

10. [42]

    It may be immediately observed from what it said at [21], that the Panel was seemingly not conscious of the effect of the amendment to s 328(2), after the decision in Siddik was given. That limited its review “to the grounds of appeal on which the appeal is made”. The Panel’s description at [24] of the course it had pursued in its review, was not consistent with adherence to the s 328(2) limitation and it also revealed that it had failed to consider whether in Mr Versace’s case it was embarking on a rehearing, or a hearing de novo. This, it is apparent, has led the Panel into error.

11. [43]

    Mr Versace’s case was that the Panel’s departure from its statutory task was revealed both by what it said at [24] as to its approach and what it had concluded at [56], which established that it had simply substituted its own opinion for that of the medical specialist, contrary to its statutory obligation. This was in issue.

12. [44]

    Mr Versace submitted that the medical assessor’s conclusions had been reached in part on his clinical examination, an advantage which the Panel did not share. Nor had it undertaken its own cognitive assessment, or a mental state examination. He argued that in those circumstances, if the Panel had identified error on the medical specialist’s part, it ought to have re-examined him and further, given what had been raised on the appeal, it should also have addressed in its reasons material evidence which had influenced the medical specialist’s decision, with which it had disagreed.

13. [45]

    Instead, Mr Versace submitted, the Panel had wrongly based its conclusions on assumptions it had made about the real estate retraining course which he had earlier undertaken; what level of application that had required on his part; on a view that working between 16 and 25 hours per week was inconsistent with a Class 3 classification; and that him no longer reading newspapers was not due to his inability to concentrate or persist, contrary to the evidence. The Panel had also failed to consider relevant evidence, which the medical specialist had considered, having had the benefit of a clinical assessment, which the Panel did not have. Nor did it have access to a transcript or clinical notes of that examination.

14. [46]

    Mr Versace also contended that if the Panel had come to the view that the medical specialist might have erred, not only should it have given him an opportunity to address it, before it reached an adverse conclusion, but it ought to have examined him itself, so as to be satisfied that it had an accurate and complete history of his pre-accident lifestyle, activities and habits and the extent to which those may have changed as a result of his injuries.

15. [47]

    The case advanced for Australia’s Best Tyres was that not only did the Panel properly understand its role, as its discussion of other aspects of the appeal on which it had failed revealed, it had properly confined itself to the consideration, identification and correction of the one error which it accepted that the medical specialist had fallen into, in relation to the “concentration, persistence and pace” category. Its conclusion that Mr Versace had been wrongly classified as falling into Class 3, when the correct classification was Class 2, was open and did not involve any error amenable to correction by this Court.

16. [48]

    It was also argued that given the nature of the complaints raised by the appeal, both the Panel’s determination of whether error had been made and its correction involved “the same process”. Its reasons had to be read beneficially and as a whole. It was thus relevant to consider that the Panel had rejected other grounds of its appeal, because it had not been convinced of the error alleged and had upheld only one ground of appeal, because of the error it had identified.

17. [49]

    In the result, the Panel did not err in its approach to the resolution of that aspect of the appeal. Mr Versace’s submissions in reality sought an impermissible merits review of the decision (see Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35 – 36; [17]). Under this statutory scheme the Panel was not obliged to permit him to address it on the error it had identified, or to examine him itself, before giving its decision.

18. [50]

    A Panel’s reasons must be considered in the way discussed in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 291. They must be read as a whole, considered fairly and without “combing through the words with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”.

19. [51]

    The reasons given by the Panel began with the background to the appeal and the result of its preliminary review, that it was not necessary for it to examine Mr Versace further, “because there is sufficient material to determine the matter without further examination”. Under this statutory scheme it was entitled to pursue that course.

20. [52]

    After noting the material it had before it, the Panel turned to the relevant factual background, where it noted that Mr Versace’s psychological injury had been conceded, but that there were competing views amongst the psychiatrists who had assessed Mr Versace, as to the nature and extent of his impairment. The Panel noted:

21. [53]

    The Panel also noted that neither party had sought a hearing. After referring to the nature of its statutory task (quoted above), it noted the grounds of appeal and the medical specialist’s conclusion that Mr Versace suffered from persisting Depressive Disorder, a diagnosis which had not been challenged on appeal. The Panel then said at [26] that it was “in general agreement with this diagnosis and proceeds with the appeal on the basis of the AMS findings”.

22. [54]

    The Panel turned then to the parties’ submissions, accepting at [29] Mr Versace’s case that the PIRS class descriptors were “examples only” and not prescriptive or requirements. The Panel referred to Clauses 1.13 and 11.13 of the Guides, which provide:

23. [55]

    The Panel noted the reliance on histories taken at various times by Dr Synnott in January 2013; Dr Ryan, the treating psychiatrist in December 2013; Dr Rastogi in August 2014; and the medical specialist on Mr Versace’s clinical presentation in November 2015. The Panel accepted that the medical specialist’s assessment had to involve clinical assessment on the day of the assessment and that consideration had to be given to activities usual for Mr Versace’s age, sex and cultural norms.

24. [56]

    The Panel then turned to the PIRS categories put in issue on appeal. It dismissed the appeal in relation to all of the challenged categories other than “concentration, persistence and pace”, as to which it observed:

25. [57]

    The result of the Panel’s conclusions was the finding that Mr Versace’s gross impairment was 15%, reduced to 14% for the accepted one tenth reduction.

26. [58]

    In Attorney-General (NSW) v Quin it was observed at 35 – 36; [17]:

27. [59]

    In this case, in resolving what lay in issue between the parties in relation to the grounds of appeal pursued before it, the Panel had a discretion as to whether or not to clinically examine Mr Versace itself. It was not asked to do so and decided itself that was unnecessary, given all of the materials before it. That being so and no other new evidence being received, given the provisions of s 328 and what was discussed in Siddik, the Panel had to confine itself to a determination of the matters raised on the appeal and if error was identified, to its correction. It could not simply undertake Mr Versace’s assessment “anew”.

28. [60]

    Mr Versace’s case was that not only did the Panel not so approach its task, the result of the approach it did adopt was that the medical specialist’s examination was not given any weight, another substantial error of the kind discussed in House v R (1936) 55 CLR 499; [1936] HCA 40. In the result, the substitution of its own opinion for that of the medical specialist, was unreasonable and plainly unjust. This was also in issue.

29. [61]

    The Panel certainly did not have before it any clinical notes of the medical specialist’s examination of Mr Versace. The medical specialist referred, however, in his reasons to various of his observations and the results of his cognitive testing. Some of those observations were not referred to by the Panel in its reasons, although it said that it had taken the decision and attachments into account. The material to which the Panel did refer included the results of the cognitive testing.

30. [62]

    Still, the Panel came to a different view to that reached by the medical specialist, as to the proper classification of the “concentration, persistence and pace” category on the evidence it discussed. That alone was not a basis on which it could substitute its opinion for that of the medical specialist. First it had to consider the alleged errors into which the medical specialist fell, identified at [35] in the written submissions filed with the notice of appeal in relation to the disputed category to be that ‘”on all available medical evidence the Appellant submits the assessment of concentration, persistence and pace is more reflective of Class 2 which is defined as Mild impairment”. It was if the Panel accepted that the medical specialist had fallen into such error, that it had to determine what the correct classification was, as well as the impact of that conclusion on the assessment of Mr Versace’s impairment.

31. [63]

    The error in the Panel’s approach is revealed by what it said at [24], as to the course it had pursued on the appeal, namely, that it had “conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by the Respondent worker.” In pursuing that approach the Panel erred.

32. [64]

    When considering the appeal as to the category self-care and personal hygiene, where it found that the medical specialist had not erred, (where the appeal ground pursued was summarised at [150] of the written submission to be that on all available medical evidence it was the assessment of Dr Rastogi which was reflective of the objective evidence before the medical specialist), the Panel observed:

33. [65]

    The possibility of differing clinical judgments being available on the day of the assessment in relation to the “concentration, persistence and pace” category, was not alluded to by the Panel in its reasons. Given the nature of what was being assessed in respect of that category, that possibility was also obviously present. After all, the medical specialist’s conclusions rested not only on written reports of other medical practitioners and medical records to which he referred, but also on the results of the cognitive testing he had administered and his own clinical examination of Mr Versace that day, as the Guides required. That was all part of the medical evidence raised by the ground of appeal relating to this category.

34. [66]

    As a matter of clinical judgment on all of that material, the Panel may well have come to a different view as to the proper assessment of the concentration, persistence and pace category than that reached by the medical specialist, particularly given that it had not conducted its own clinical examination of Mr Versace. Without, however, considering and determining whether the medical specialist had fallen into the error alleged on the appeal, given all of the materials he had to consider, including his own clinical examination of Mr Versace, the Panel was not entitled to conduct the assessment of Mr Versace anew and then to substitute its own clinical judgment, for that of the medical specialist as to the classification of that category.

35. [67]

    Having discussed the parties’ respective cases, the Panel explained at [56] that it had concluded that “when assessing the Respondent worker's own evidence, together with the other evidence concerning the completion of a real estate licencing course and his capacity to hold down a job, albeit part-time within a real estate environment”, it was satisfied that the medical specialist had erred. The only error it identified, however, was the conclusion as to the classification itself, namely Class 2, rather than Class 3 being the appropriate assessment.

36. [68]

    The reason given for that conclusion was the “basic retraining course, or perhaps more than a basic retraining course, by way of a real estate licencing course” which Mr Versace had completed, which the Panel inferred had required a level of application requiring concentration and completion of assessments and his work for between 16 and 25 hours per week. Reference was also made to newspaper reading.

37. [69]

    In so approaching its task, the Panel erred. The competing classifications provided by the PIRS for the “concentration, persistence and pace” category were:

38. [70]

    The Guides required the assessment to have regard to Mr Versace’s psychiatric symptoms; his diagnosis; the severity and possible duration of his impairment; his own description of his functioning limitations, as well as that of family members and others who may have knowledge of him; medical reports, feedback from treating professionals and results of standardised tests, including appropriate psychometric testing performed by a qualified clinical psychologist. Variations in the level of his functioning over time also had to be considered. In reaching his conclusions the Guides required the medical specialist to exercise his clinical judgment on the day of his examination and, by reference to the examples given, taking into account activities that were usual for Mr Versace’s age, sex and cultural norms.

39. [71]

    There was no suggestion that Mr Versace was an unreliable historian. He was an automotive engineer who had established and built up Australia’s Best Tyres’ business which he had sold but was still working in, when he was injured in 2012. On clinical assessment by the medical specialist in 2015 he was working up to 25 hours per week in a very basic customer service role for a real estate agency, after having earlier undertaken a retraining course, although he had received Dr Ryan’s advice in April 2015 that he needed to reduce his hours to 16. Mr Versace reported being forgetful of details of conversations, frequently repeating himself, misplacing personal belongings and not being able to read beyond a paragraph before losing focus.

40. [72]

    The cognitive testing the medical specialist administered revealed a degree of impairment in the interview situation, which the medical specialist observed appeared to be stressful. He found Mr Versace’s performance on cognitive assessment to have been poor, as well as forgetfulness, difficulty persisting at tasks and being unable to read beyond a paragraph. Because the Panel did not conduct its own clinical examination, it had to take these results and findings into account, in determining not only whether the medical specialist had fallen into the alleged error, but also if he had, whether that error had an impact on the conclusions which he had reached as to the correct classification of this category.

41. [73]

    Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 is an example of such an approach being pursued. There an application to set aside a medical assessment of a review panel of medical assessors undertaken under s 63 of the Motor Accidents Compensation Act 1999 (NSW) which had been granted by Garling J, arose for consideration. In that case the Panel was obliged to consider whether certificates issued by the original assessor should be confirmed or revoked, on the basis of a new assessment, not by way of correction of error (see at [18]). A similar PIRS impairment scale had to be considered.

42. [74]

    It was concluded at [28] that instead of undertaking its own assessment, this review panel had reviewed the original decision for error, which was not its statutory task. An example given at [29] was in relation to the concentration, persistence and pace category, where the Panel had concluded that the assessor had taken account what it considered to be an irrelevant matter, namely forgetfulness. The Panel had then proceeded on the basis that if the finding of forgetfulness in Dr Jager’s assessment was discounted, the respondent’s capacity to perform her work duties could be assumed.

43. [75]

    At [30] it was observed:

44. [76]

    By way of comparison, in Mr Versace’s case, the Appeal Panel’s role was not to approach the appeal in the same way as the medical specialist had to approach Mr Versace’s assessment. Rather, this Panel had to conduct the appeal under a statutory scheme which required that unless it received new evidence, its consideration of the grounds of appeal had to be confined to the identification and correction of error on the part of the medical specialist, as explained in Siddik.

45. [77]

    Not having received new evidence, the Panel was not entitled, as it explained at [24] of its reasons it had done, to review the material before it and to reach its own conclusions “concerning the correct assessment of the impairments and losses” Mr Versace had suffered. Nor could it conclude, if it came to a different view to that reached by the medical specialist, having undertaken that exercise, that the medical specialist must have erred.

46. [78]

    What the Panel rather had to do in relation to each of the matters raised on the appeal was to begin as the Panel in Rutland did, namely, by examining the relevant material and the medical specialist’s reasons to determine whether he had fallen into the errors alleged under s 32(7)(3)(c) and s 327(3)(d).

47. [79]

    On this appeal, if any of the alleged errors in the assessment of the classification of the challenged categories was identified, the Panel then had to consider what impact, if any, that error had on the assessment of Mr Versace’s impairment. It was only if the result of that exercise was both a conclusion that the medical specialist had erred as to the proper classification of some or all of the categories put in question by the appeal and also that a different percentage total impairment had been suffered by Mr Versace to that determined by the medical specialist, that a new certificate should have been issued by the Panel.

48. [80]

    In Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499, Fagan J recently considered a case where an Appeal Panel had correctly concluded that the medical specialist had erred in failing to consider an applicable part of the Guides, which dealt with the consequences of Ankylosis. What that Panel failed to do, however, having identified that this was an error which did have an impact on the assessment of the injury to the ankle there in question, was itself then to apply the applicable Guides to assess the impairment resulting from the injury, which in that case required consideration to be given to any contribution to the assessed whole person impairment derived by application of the WorkCover Guides, which should be attributed to pre-existing injury.

49. [81]

    As Fagan J discussed, if a ground of appeal raised by an appellant has been made out, error having been identified which has had an impact on the proper assessment of the impairment, in issuing its new certificate the Panel must have regard to all of the applicable Guides, in arriving at a basis for that certificate, which will stand in place of that issued by the medical specialist.

50. [82]

    As his Honour explained, it is in undertaking that task that a Panel has to consider all of the matters before it, relevant to the assessment of the impairment resulting from the injury in question. This requires that consideration be given both to the matter in respect of which a Panel has found error and to the other aspects of the medical specialist’s assessment, which are not been put in issue on the appeal, or in respect of which error is not found, as well as matters which a medical specialist did not have to consider, because of the error into which he or she fell, in arriving at a conclusion as to the extent of the impairment.

51. [83]

    This was not the approach which the Panel pursued in Mr Versace’s case. It did not begin by considering and resolving the issues lying between the parties over the errors it was alleged, on the appeal, the medical specialist had fallen into. Rather, having itself reviewed the materials to arrive at its own conclusions as to Mr Versace’s “impairments and losses”, it concluded that the medical specialist must have erred as to the proper classification of the “concentration, persistence and pace” category, given the different conclusion it had arrived at, having considering that material for itself.

52. [84]

    In the result it must be accepted that the Panel fell into error of a kind which is amenable to review in proceedings such as this. It had to determine the appeal brought from the medical specialist’s assessment, in accordance with the limitations imposed upon it by this statutory scheme. In this case its statutory task was not simply to undertake anew the assessment that the medical specialist had been required to undertake to resolve the medical dispute lying between the parties, in order to resolve the matters raised by this appeal.

53. [85]

    The Panel’s error was not simply the result of it reaching a different conclusion to that arrived at by the medical specialist, as to the merits of what the parties had joined issue over, a matter which this Court could not review under s 69 of the Supreme Court Act. Rather, its error was the result of the Panel’s erroneous approach to its resolution of the matters raised by the appeal, which had the result that it failed to perform its statutory function, concerned as that was in this case with the identification and correction of error. That is an error which this Court has power to address under s 69.

54. [86]

    Accordingly, the orders sought must be made.

55. [87]

    What procedural fairness requires in a particular case depends on the statutory power being exercised. The concept is essentially concerned with questions of practical justice (see Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]).

56. [88]

    In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1, French CJ and Kiefel J considered, at [9], that procedural fairness requires a decision-maker both to identify for the affected person any critical issue not apparent from the nature of the decision, or the terms of the statutory power and also to advise that person of any adverse conclusion which would not obviously be open on the known material. Otherwise the decision maker is not required to expose either thought processes, or provisional views for comment, before a decision is made.

57. [89]

    In Rutland there was also an issue as to whether the review panel should have itself examined the respondent, neither party having sought such an examination. It was held that Garling J had not erred in concluding that the obligation to provide procedural fairness did not necessarily require the panel to examine the respondent, but it did, however, require the panel to give her the opportunity to address it, on whether the inference it proposed to draw about an aspect of her functional impairment was available on the facts as they were at the time it undertook its assessment, given the conflicting material before it and its decision not to conduct its own clinical examination.

58. [90]

    This is a similar case.

59. [91]

    Here the Panel also had a discretion to examine Mr Versace itself, which it did not exercise, the parties not having sought an examination, and it being of the view that there was sufficient material to determine the matters raised on the appeal, without further examination. It did not revisit that decision, even though there was obviously room for different conclusions to be reached, on the material before it, as to the proper classification of the various categories raised on the appeal and where the medical specialist had had the advantage of having examined Mr Versace.

60. [92]

    Nor did it consider it necessary to examine Mr Versace when it came to the view that he might have been wrongly classified in respect of the “concentration, persistence and pace” category, it having wrongly undertaken the assessment the medical specialist had conducted anew, as I have explained, rather than confining itself to the consideration, identification and correction of error on the medical specialist’s part, as it was obliged to do.

61. [93]

    The medical specialist’s conclusions on the “concentration, persistence and pace” category had rested on an acceptance of Mr Versace’s reports about his state on examination, which were accepted to be consistent with medical reports in evidence, as well as with the results of his clinical examination and the cognitive testing the medical specialist then administered.

62. [94]

    While the appeal in relation to the “concentration, persistence and pace” category was concerned with alleged error as to ‘all available medical evidence’ which it was submitted were “more reflective of Class 2 which is defined as Mild impairment Panel”, the Panel’s own conclusions as to the correct classification of this category rested not on the available medical evidence, but rather on certain assumptions it made and inferences which it drew, which the medical specialist had not made or drawn.

63. [95]

    Those assumptions related to the nature of the retraining course which Mr Versace had earlier completed, namely that it required a particular level of application and that it required certain concentration and completion of assessments. The inferences which it drew related to what his work at the real estate agency involved. It was its conclusions as to these matters which led the Panel to the view that the medical specialist had wrongly classified Mr Versace as Class 3 in the concentration, persistence and pace category, even though there was little evidence about what the course Mr Versace had completed involved, or about the nature of Mr Versace’s duties, or his ability to perform them.

64. [96]

    The Panel did not give Mr Versace the opportunity to address it on any of these matters.

65. [97]

    The Panel’s assumptions and inferences appeared to be inconsistent with recent medical reports in evidence as to Mr Versace’s declining capacity; Mr Versace’s own report, which included that, for example, he was forgetful and could not read beyond a paragraph, before losing focus and that his work involved very basic customer service; with the results of the medical specialist’s examination of Mr Versace; and with the results of his cognitive testing, which objectively showed the state of aspects of his impairment, at the time of that testing.

66. [98]

    While in resolving what lay in issue between the parties the Panel was entitled to give particular evidence different weight to that which the medical specialist gave that evidence, even giving it no weight (see Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [16]), it had to ensure that it gave Mr Versace procedural fairness. Given that it had embarked on a course which departed from the resolution of the matters raised on the appeal, to one which involved undertaking its own assessment of his “impairments and losses” and its conclusions on the correct classification of the “concentration, persistence and pace” category resting as they did on the basis of the assumptions it made and the inferences which it drew, in relation to matters about which there was little evidence, Mr Versace had to be given the opportunity to address these matters.

67. [99]

    Had the Panel, itself examined Mr Versace, it could have raised the matters about which it made assumptions and drew inferences with him. In that event it could have conducted his assessment anew, the medical specialist members of the Panel exercising the powers granted them by s 324(3).

68. [100]

    Having not done so, like in Rutland, procedural fairness required the Panel to give Mr Versace the opportunity to deal with the critical assumptions and inferences on which its conclusions rested, before it came to its decision. That was because the Panel’s approach involved it drawing adverse conclusions about the correct classification of the “concentration, persistence and pace” category, on a basis which would not obviously have been open on the material on which the Panel’s conclusions had to be arrived at in relation to this ground of appeal (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1). There was, in fact, but little evidence about the matters on which the Appeal Panel’s decision turned, hence the need for it to make such assumptions and to draw such inferences. If Mr Versace was to be given the procedural fairness he was entitled to receive, he had to be given an opportunity to address these matters.

69. [101]

    Accordingly, it must be accepted that by the approach it adopted, the Panel did deny Mr Versace procedural fairness. That, too, is a basis on which the orders sought must be made.

70. [102]

    In the result the orders sought must be made. The usual order as to costs in these circumstances is an order in favour of Mr Versace for costs as agreed or assessed. Unless the parties approach within 14 days, that will be the Court’s order.

71. [103]

    Otherwise, I order that :

    1. (1)

       The Appeal Panel’s medical assessment certificate and statement of reasons of 4 February 2016 be set aside.

    2. (2)

       The matter be referred to the Workers Compensation Commission of NSW for the appointment of a new Appeal Panel to consider the appeal from the medical specialist’s certificate afresh, in accordance with law.