Ypermachou v PMK Pty Ltd

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

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

6. [6]

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

7. [7]

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

8. [8]

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

9. [9]

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

10. [10]

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

11. [11]

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

12. [12]

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

13. [13]

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

14. [14]

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

15. [15]

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

Appeal Panel’s reasons summarised

1. [16]

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

2. [17]

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

3. [18]

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

4. [19]

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

5. [20]

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

6. [21]

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

7. [22]

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

Consideration and determination

1. [23]

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

2. [24]

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

3. [25]

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

4. [26]

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

5. [27]

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

6. [28]

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

7. [29]

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

8. [30]

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

9. [31]

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

10. [32]

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

11. [33]

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

12. [34]

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

13. [35]

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

14. [36]

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

15. [37]

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

16. [38]

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

17. [39]

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

18. [40]

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

19. [41]

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

20. [42]

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

21. [43]

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

22. [44]

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

23. [45]

    No reviewable error is disclosed in that reasoning.

24. [46]

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

25. [47]

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

26. [48]

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

Conclusion

1. [49]

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