Windley v Workers Compensation Nominal Insurer

1. [1]

   HER HONOUR: This is a judicial review of a decision of a Medical Appeal Panel of the Personal Injury Commission pursuant to ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

2. [2]

   By amended summons filed 23 June 2021, the plaintiff seeks:

   1. (1)

      A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for the decision of the third defendant and issued by the second defendant is void and of no effect.

   2. (2)

      An order setting aside the decision and the statement of reasons for decision of the third defendant and issued by the second defendant.

   3. (3)

      A declaration pursuant to s 69 of the Supreme Court Act that the decision and the statement of reasons for decision of the fourth defendant and issued by the second defendant is void and of no effect.

   4. (4)

      An order setting aside the decision and the statement of reasons for decision of the fourth defendant and issued by the second defendant.

   5. (5)

      An extension of time to commence these proceedings as against the fourth defendant.

3. [3]

   The plaintiff is Damien Windley. The first defendant is the Workers Compensation Nominal Insurer (“the Nominal Insurer”). The second defendant is the President of the Personal Injury Commission of New South Wales (“the Personal Injury Commission”). The third defendant is a Medical Appeal Panel constituted by Members John Harris, Dr Mark Burns and Dr Brian Noll (“the Medical Appeal Panel”). The fourth defendant is a Medical Assessor constituted by Dr Yu-Key Ho (“the Medical Assessor”).

4. [4]

   As the Nominal Insurer is the only contradictor, the second, third and fourth defendants have all filed submitting appearances. The parties relied upon their joint court book.

5. [5]

   On 27 March 2015, the plaintiff sustained injury in the course of his employment. He was employed as a baker and sustained a hyperflexion type injury to his right hand when handling a heavy cast iron baking tray. After the incident, the plaintiff worked for about one week in a modified capacity, and then ceased work.

6. [6]

   Leading up to the assessment of the degree of permanent impairment by the Medical Assessor, the plaintiff had been clinically diagnosed as suffering from a chronic regional pain syndrome, and had undergone management, which included the implantation of a stimulator device.

7. [7]

   On 11 February 2020, the plaintiff attended Dr Lai for an assessment of Whole Person Impairment (“WPI”). Dr Lai assessed the degree of permanent impairment under Table 17.1 of the NSW Workers Compensation Guidelines for Evaluation of Permanent Impairment, 4th edition (“the Guidelines”) concluding that the plaintiff’s degree of WPI was at 56 per cent. On 28 February 2019 and 26 March 2020, on behalf of the Nominal Insurer, the plaintiff was assessed by Dr Reiter. Dr Reiter was of the view that the plaintiff did not meet the criteria for Table 17.1, but nonetheless assessed the plaintiff’s degree of WPI, under Table 16-3 p 439, as 18 per cent.

8. [8]

   Prior to the assessment by the Medical Assessor, the dispute as to the degree of permanent impairment between the parties related to the contest between an assessment where Table 17.1 was satisfied and an assessment of WPI of 56 per cent was made, and an assessment where Table 17.1 was not satisfied and an assessment of WPI of 18 per cent was made.

9. [9]

   The body parts referred to by the Medical Assessor were “right upper extremity (waist) or chronic pain condition in the right upper extremity (shoulder, elbow, wrist and hand)”.

10. [10]

    The Medical Assessor determined the degree of WPI to be 5 per cent.

11. [11]

    The plaintiff appealed under ss 327 and 328 Workers Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Management Act”), and the Registrar referred the appeal to a Medical Appeal Panel.

12. [12]

    On 11 January 2021, Parnel McAdam, Principal Lawyer, in her reasons for her decision at [5] stated that she was satisfied on the face of the application and submissions, that at least one of the plaintiff’s grounds of appeal had been made out. It is with the result that this appeal was referred to the Appeal Panel.

13. [13]

    On 4 February 2021, the Medical Appeal Panel (“Appeal Panel”) concluded that the Medical Assessor’s deduction for a pre-existing condition was incorrect. The Appeal Panel rejected the plaintiff’s complaint that there was an error in the Medical Assessor’s reasons so far as his consideration of Table 17.1 was concerned. The Appeal Panel also rejected the plaintiff’s application to place further evidence before it.

14. [14]

    The plaintiff seeks judicial review of the whole of the decision and the statement of reasons for the decision of the Medical Assessor dated 23 October 2020; and the whole of decision of the Medical Appeal Panel dated 4 February 2021.

Extension of time

1. [15]

   On 4 February 2021 the Appeal Panel provided written reasons for its decision and issued a certificate. On 1 March 2021 the plaintiff filed his summons in this Court. The plaintiff does not require an extension of time in relation to the Appeal Panel’s decision. For reasons that appear below, I have declined to entertain the judicial ground of review that relates to the Medical Assessor’s decision dated 23 October 2020. Therefore, there is no requirement for an extension of time to be granted.

Grounds of judicial review

1. [16]

   I will deal with Judicial ground (1) in relation to the Appeal Panel first, that is whether the decision of the Medical Assessor should be set aside.

2. [17]

   The parties referred to Cincotta v Police Citizens Youth Club NSW Ltd & Ors [2018] NSWSC 1588 (“Cincotta”) where Hoeben CJ at CL stated at [6]-[9]:

3. [18]

   The plaintiff submitted that the approach of the Medical Assessor contains several errors. Therefore, he seeks that the decision of the Medical Assessor be set aside.

4. [19]

   The plaintiff agrees that in the workers compensation scheme, the approach of setting aside both decisions is not routinely followed. But here there is an identified deficiency in the underlying primary assessment by the Medical Assessor and as it is, in effect, the root of all evil, it should therefore be set aside. The legislation does not seem to have any statutory prohibition of that occurring. It’s just the matter that it is not commonly done.

5. [20]

   The Nominal Insurer takes a neutral position in relation to whether the decision of the Medical Assessor should be set aside.

6. [21]

   Based on the decision in Cincotta, and for the reason of comity, in the exercise of my discretion, I decline to deal with the challenge to the Medical Assessor’s decision on the basis that the Workplace Injury Management Act provides an effective and convenient remedy if there is a purported error in the Medical Assessor’s decision. Section 328(5) effectively provides that a certificate issued by the Appeal Panel takes the place of the previous medical assessment certificate issued by the Medical Assessor. Hence judicial ground of review (1) fails.

7. [22]

   The remaining grounds of judicial review concern the decision of the Appeal Panel. They are:

The relevant legislation

1. [23]

   Before I deal with the grounds of judicial review, it is necessary that I now briefly refer to the relevant provisions of the Workplace Injury Management Act.

2. [24]

   Sections 327 and 328 of the Workplace Injury Management Act relevantly read:

3. [25]

   In the present case, the medical assessment was in relation to Complex Regional Pain Syndrome (CRPS).

4. [26]

   Section 331 of the Workplace Injury Management Act requires the Appeal Panel to apply the Guidelines in conducting its review. Section 331 relevantly reads:

5. [27]

   The plaintiff submitted that unlike a clinical diagnosis of chronic regional pain syndrome, which may be made on the basis of a number of different criterion, Table 17.1 prescribes a defined, step-by-step, set of criteria for Type 1 or Type 2 chronic regional pain syndrome and sets out a four step process for Complex Regional Pain Syndrome.

6. [28]

   The NSW Workers Compensation Guidelines for the evaluation of permanent impairment 4th Edition dated 1 April 2006 are the relevant guidelines (“the Guidelines”).

7. [29]

   Table 17.1 of the Guidelines read:

8. [30]

   Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 (“Elsworthy”), is instructive, as Fagan J considered the chronic regional pain syndrome guidelines. I have also adopted this approach in using (a) to (d) and (i) to (iv) to better explain Table 17.1, just as Fagan J has done. This is described in Elsworthy at [8], [41]-[45] where his Honour stated:

Judicial Ground (1) – fresh evidence

1. [31]

   This ground of judicial review is that the Appeal Panel misunderstood, and misapplied, ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act and the impact of the decisions of Petrovic and Lukacevic when considering whether it should receive fresh evidence.

2. [32]

   The Appeal Panel’s reasons at [23] to [52] addressed the topic of fresh evidence. The Appeal Panel stated as follows:

3. [33]

   As a result of the Appeal Panel's misunderstanding, and misapplying, of the principles to be applied, the Appeal Panel rejected those new materials, including on a mistaken discretionary basis, and did not consider them sufficiently.

4. [34]

   In oral submissions, counsel for the plaintiff says that the Appeal Panel’s rationalisation is bordering on the perverse (T15.48). Counsel argues that the plaintiff is not criticising the assessment. He is not being personally critical of the Medical Assessor but rather, the plaintiff is saying, factually what the Medical Assessor recorded (and this is referred to in the Appeal Panel’s reasons) is incorrect and correcting the record as to what occurred (T16.36-39).

5. [35]

   The Medical Appeal Panel misunderstood the decisions of Petrovic and Lukacevic to reach the conclusion that the fresh evidence in this case could not be received under s 327, and because it could not be received under s 327, that became the primary, if not only, discretionary factor considered under s 328.

6. [36]

   The decisions cited by the Medical Appeal Panel, but misunderstood by the Medical Appeal Panel, permitted the reception of the statement and the photographs: Petrovic at [29]­[37] and Lukacevic at [33]­ [42], [75]-[81], [97]-[100] and [102]-[103]. The statement and the photographs were material because that evidence was probative to the Medical Assessor's assessment that certain symptoms did not exist. The statement and the photographs were also material as to how the clinical consultation was conducted and that evidence was material to an understanding of the correct approach to the Medical Assessor conclusions which could otherwise be thought to derive from clinical assessment.

7. [37]

   In Petrovic, Hoeben CJ noted that s 327(3)(b) of the Workplace Injury Management Act "does not include matters going to the process whereby the AMS makes his or her assessment" (at [31]).

8. [38]

   In Lukacevic, to which the Appeal Panel also referred, Handley AJA held that an Appeal Panel could exercise discretion in deciding whether or not to admit evidence pursuant to s 328(3) of the 1998 Act (at [102]-[103]).

9. [39]

   In the present case, the Appeal Panel indicated that its discretion should not be exercised in favour of admitting the material (Appeal Panel’s decision, [37]).

10. [40]

    The Appeal Panel’s decision addressed the statement that the plaintiff seeks to rely on in detail (at [38]-[48] of the Appeal Panel decision) and provided detailed reasoning in support of its conclusion that it should be rejected.

11. [41]

    The Appeal Panel also addressed the two photographs that the plaintiff seeks to rely on at [49]-[52] of the Appeal Panel decision. As the Appeal Panel explained, it is difficult to see how these photographs (taken months before the October 2020 assessment) could be relevant, or why detail is said to be visible in colour photographs that cannot be seen in the black and white versions of the same images.

12. [42]

    This ground of judicial review suggests that the Appeal Panel misunderstood the Workplace Injury Management Act, Petrovic and Lukacevic as permitting the exclusion of the material on a "mistaken discretionary basis". However, no error in the Appeal Panel's understanding of the law, or reasoning in applying it, has been established.

13. [43]

    The fresh evidence comprised of firstly the plaintiff’s statement as to what he says occurred before the Medical Assessor, and secondly, whether the two coloured photographs should be considered as fresh evidence.

14. [44]

    The black and white photographs of his right hand were already before the Appeal Panel. The plaintiff could have put the colour photographs before the Medical Assessor. The Appeal Panel stated that the plaintiff did not submit as to how the coloured photographs differed from the black and white photographs. It explained that both the black and white photographs and the coloured photographs show a clear tan line which presumably arises from the fact that the plaintiff wears a brace. Also, the Appeal Panel explained that the photographs depict that some of the right fingers are swollen. The Appeal Panel, in the exercise of its discretion, stated that the coloured photographs were taken in February 2020 and it is difficult to accept how these photographs are objective evidence as to the presence of symptoms before the Medical Assessor at the time of assessment later in October 2020. It was open to the Appeal Panel in its discretion to reject the coloured photographs as fresh evidence.

15. [45]

    I accept that the plaintiff’s statement addresses what he says occurred when he was assessed by the Medical Assessor. Section 327(3) in its terms applies to the availability of added relevant information (but only if the added information was not able to and could not have been reasonably obtained by the appellant before the medical assessment). Logic dictates the plaintiff could not have reasonably obtained the information as to what he says took place at the medical assessment prior to the medical examination taking place. The information that the plaintiff provided as to what occurred at the medical assessment satisfies the terms of s 327(3). However, unlike the thrust of the plaintiff’s submissions, the plaintiff’s statement is actually critical of what took place at the medical assessment. The plaintiff’s complaints were analysed by the Appeal Panel. After doing so, the Appeal Panel decided that the plaintiff failed to address why the statement was admissible that essentially criticises the process of the examination. The Appeal Panel stated in their reasons that the AMS is unable to respond to the statement and can only refer to the contents of the MAC in discussing the appellant’s allegations. They observed that the measurements of loss and movement of the various joints in the upper extremity are precise and inconsistent with the plaintiff’s allegations.

16. [46]

    It is my view that the Appeal Panel correctly applied Petrovic and Lukacevic. The Appeal Panel was entitled to exercise discretion in the way they did and to reject the fresh evidence. This ground of appeal falls.

Judicial Ground (2) – whether the appeal panel was wrong in finding that the Medical Assessor had provided sufficient reasons

1. [47]

   The Appeal Panel erred in not concluding that the AMS had not considered in a step-by-step manner the criteria of Table 17.1 and had applied Table 17.1 as if it were a matter of general and broad consideration. The Appeal Panel erred in not concluding that the Medical Assessor’s reasons were by way of the stating only of a conclusion, rather than, as required, exposing the path of the Medical Assessor’s own decision. The Appeal Panel erred in likening the quality of the Medical Assessor’s discharge of the reasons obligation with medical or clinical judgement, which if medical or clinical judgement is applied, nonetheless that medical or clinical judgement has to be exposed in the path of reasons.

2. [48]

   The Appeal Panel erred in failing to recognise that the Medical Assessor, when considering the markedly different opinions of other practitioners, was required to provide reasoning why the Medical Assessor was reaching a markedly different outcome. In this case, that was where the parties’ engaged medico legal experts had considered the plaintiff’s WPI to be 18 per cent or 56 per cent WPI, the Medical Assessor’s assessment was markedly below that range. Reasons where required directed to why that range was to be rejected. The Appeal Panel erred in the way it applied the principle of a beneficial construction to the reasons of the Medical Assessor because the Appeal Panel failed to recognise that it was filling the gaps in the Medical Assessor’s reasons.

3. [49]

   The plaintiff refers to 4 statements made by the Medical Assessor. They are:

4. [50]

   First statement:

5. [51]

   Second statement:

6. [52]

   Third statement:

7. [53]

   Fourth statement:

8. [54]

   While the plaintiff accepts that the Medical Assessor’s decision has to be read as a whole, even when regard is had to the extracted paragraphs above, the Medical Assessor did not comply with his reasons obligation, because at no time did he direct enquiry to the specific criteria set out in Table 17.1.

9. [55]

   A review of Table 17.1, shows that each of the prescribed criteria have to be considered to determine whether the criteria specified for either Type 1 or Type 2 chronic regional pain syndrome is made out. The Medical Assessor's path of reasoning does not demonstrate that the Medical Assessor considered Table 17.1 in any step-by-step, or specific, manner. Rather, and impermissibly, the Medical Assessor's path of reasoning identifies that the Medical Assessor adopted a clinical approach to the question of chronic regional pain syndrome, or the Medical Assessor adopted some other form of broad discretionary makeup.

10. [56]

    If, for the moment, it is appropriate to treat the Medical Assessor as having had regard to Table 17.1, all that can be properly concluded is that the Medical Assessor provided an impermissible bare ipse dixet (dogmatic unproven statement) as to the non-satisfaction of Table 17.1, and that is not a sufficient discharge of the duty to provide reasons obligation. At a minimum, the reasons obligation in the context of an assessment of the degree of permanent impairment under a guideline such as Table 17.1 involves the reasons for the end point conclusion of satisfaction, or non-satisfaction, of Table 17.1.

11. [57]

    While a decision maker's reasons are to be given the type of beneficial reading discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (“Liang”), that beneficial reading does not extend to filling in the gaps of reasoning that is not present or reformulating and reworking reasoning that is not present, assuming the decision was made according to law: see Sadsad v NRMA Insurance Limited [2014] NSWSC 1216 at [47] (“Sadsad”). Prima facie, reasons that do not address in any manner the legally relevant criteria cannot logically be presumed to have been made according to law.

12. [58]

    In this case, if regard was had to the criteria in Table 17.1, then using the clinical findings adverted to by the Medical Assessor, and the clinical findings in the materials and matters used by the Medical Assessor, for his clinical judgement that chronic regional pain syndrome was not present, did not on the face of it oust a diagnosis because there remained alternative and other criteria to be considered.

13. [59]

    There was a blatant reasons obligation error by the Medical Assessor. Further, the Medical Assessor did not apply Table 17.1, and did not make any findings relevant to it.

14. [60]

    The Appeal Panel in paragraphs [63] to [78] set about reconstructing reasoning that does not exist, and reasons that do not exist, and this is an impermissible example of the Medical Appeal Panel filling gaps of reasoning where that reasoning is not present. The plaintiff explained this proposition by setting out the Appeal Panel’s reasons on this topic below and then later underlining the portions where he says the Appeal Panel filled the gaps.

15. [61]

    The Appeal Panel recorded at [63] to [66]:

16. [62]

    The Appeal Panel then dealt with the reasoning of the Medical Assessor at [67] to [77]. Highlighted in underline is where the Panel attributes a reasoning process that was not present in the Medical Assessor's path of reasons, including the comparison of symptoms at different times ([69]). Even if it was assumed that the Appeal Panel's analysis was correct, it was not the analysis undertaken by the Medical Assessor:

17. [63]

    The Appeal Panel also accepted, without criticism, the role of clinical judgement as deployed by the Medical Assessor. The Medical Appeal Panel's reconstructed reasoning at [67] (extracted above) starts with the Medical Assessors reasoning in [63]-[64]. The role of clinical judgement is not directed to the criteria to be applied; that is set by the applying guidelines. Yet, the very nature of the reconstructive exercise in [67] is to dress what is contained in [63]-[64] with the clothes of a path of reasons directed to the criteria in Table 17.1. None of the caselaw cited by the Medical Appeal Panel justified the approach taken by the Assessor of not applying Table 17.1 and not providing reasons as to the application of Table 17.1.

18. [64]

    Judicial Ground (1) relied on by the plaintiff is that the Appeal Panel erred in not concluding that the Medical Assessor had erred “in respect of, and not complied with, his reasons obligation in respect of the assessment performed by the AMS under Table 17.1 and for upper extremity impairment.”

19. [65]

    That there is an obligation to provide reasons is well established in law. The Appeal Panel canvassed key authorities between [65]-[66]. In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (“Vegan”), the Court of Appeal said (in relation to the obligations of the Appeal Panel) that (at 397 [121]-[122]):

20. [66]

    In Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127 it was noted that “the standard required of a written statement of reasons is that they reveal the actual path of reasoning by which the decision maker arrived at its opinion” (at [103]).

21. [67]

    In the plaintiff’s submissions, he endeavours to identify reasoning attributed to the Medical Assessor in the Appeal Panel decision that was not actually present in the Medical Assessor’s findings. For example, the plaintiff argued that the Appeal Panel decision had no proper basis for concluding that “the AMS was not satisfied at the time of assessment that the appellant had either a vasomotor sign or a sudomotor/oedema sign”.

22. [68]

    While the Medical Assessor in some instances used different language, the Appeal Panel has not attributed findings to the Medical Assessor that were not present in his reasoning. For example, the Medical assessor recorded that: “I cannot see any features to support the diagnosis of chronic regional pain syndrome. The two hands are the same colour, same temperature and no differences in sweating. I cannot see any difference in the growth of nail and hair. There is no soft tissue atrophic change” (at page 3).

23. [69]

    As was the case in El Masri v Woolworths Ltd [2014] NSWSC 1344, “it is clear what was decided and why, as is the reasoning process that led to the decision” (at [50], per Campbell J).

24. [70]

    In Elsworthy, to which the plaintiff’s submissions refer at [16], Fagan J emphasised that the criteria in Table 17.1 of the Guidelines are strict. However, his Honour did so by reference to an indication in the Guidelines that a key reason for this strictness is that pain is subjective and therefore open to exaggeration and fabrication (Elsworthy at [41]). To the extent that it may be relevant, the decision in Elsworthy does not assist the plaintiff.

25. [71]

    The indicia in Table 17.1 of the Guidelines were addressed in the Medical Assessor reasoning, and the Appeal Panel decision was correct to find that the reasons given by the AMS had been adequate.

26. [72]

    Table 17.1 contains no clinical component, or other broad discretionary makeup, in the question of whether under the applying guidelines a diagnosis of Type 1 or Type 2 chronic regional pain syndrome is made out under Table 17.1. "Clinical judgement" is only used in the rating to be applied, but that is subsequent to the question of the whether the diagnosis is made out.

27. [73]

    In the correct application of Chapter 17, steps 1, 2 and 3 of Table 17.1 look to whether a worker's condition and complaints meet specified criteria. Step 4 of Table 17.1 then does a different thing. Step 4, if steps 1, 2 and 3 are satisfied, poses whether: "There is no other diagnosis that better explains the signs and symptoms".

28. [74]

    As was identified in Elsworthy at [5]-[9], [41] and [45], the satisfaction, or not, of the criteria in Table 17.1 is a strict process. The assessment of the degree of permanent impairment must be done by the correct application of the applying guidelines, rather than determined clinically, or by some broad discretionary makeup.

29. [75]

    I have carefully read the Medical Assessors decision. As Fagan J stated in Eslworthy, the four requirements in (a) to (d) of Table 17.1 are strict and demanding. The diagnosis of chronic regional pain syndrome, the word “diagnosis on items” (a) to (d) have the same meaning each time it appears. As the criteria in Table 17.1 (a) to (d) are strict it would be expected that the Medical Assessor would make some specific reference and identify which of the requirements he was addressing (e.g Table 17.1(a)).

30. [76]

    As explained in 17.3 of the Guidelines, the reason why the criteria are so strict is that pain is a subjective experience. It is therefore open to exaggeration and fabrication in the compensation setting.

31. [77]

    In this case, the Medical Assessor does not, in terms, address Table 17.1. The Medical Assessor's path of reasons contains statements which generally refer to the topic of chronic regional pain syndrome, but make no special reference to Table 17.1. The closest the AMS comes to applying Table 17.1 is in his Fourth Statement that is set out at para [53] of this judgment.

32. [78]

    The Medical Assessor did not specifically refer to Table 17.1. He did refer to the symptoms addressed in the four requirements in Table 17.1 in general terms.

33. [79]

    It is my view, that even through the Appeal Panel’s reasons are to be given a beneficial reading, that beneficial reading does not extend to filling in the gaps of reasoning that is not present, as underlined earlier by the plaintiff in his submissions, or reformulating and reworking that is not present. As set out in Sadsad, the Appeal Panel has filled in the gaps in reasoning in the Medical Assessor’s reasoning. The Appeal Panel has made a jurisdictional error and an error on the face of the record. The decision of the Appeal Panel should be set aside.

Judicial Ground (3) – changing symptoms

1. [80]

   This judicial ground is that the Appeal Panel “erred in relying on the notion that the plaintiff’s symptoms and condition had markedly changed from time to time and that was an explanation for why the Medical Assessor’s findings as to Table 17.1 and limb impairment were markedly different [to] the findings of others…” Again, the sentences following this initial sentence are read as particulars to this ground, save for the final sentence, which indicates that the “Appeal Panel’s logic, and conclusion, in this regard was irrational and there was no evidence to support it.” The plaintiff has not provided any written submissions to support this ground of review. From my reading of the transcript, the plaintiff has not elaborated on this ground of judicial review.

2. [81]

   The Appeal Panel Decision appropriately noted that the task for the Medical Assessor was to complete a contemporaneous examination (at [61]). As is well established, a decision will only exceed the lawful authority of a decision maker where it is one at which no rational or logical decision-maker could arrive on the same evidence; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16, 647-648, [130] (Crennan and Bell JJ).

3. [82]

   This issue does not appear to be addressed in the plaintiff’s submissions and it is unclear whether he presses it.

4. [83]

   This ground of judicial review may be taken to be abandoned but, for completeness, ought to be dismissed.

5. [84]

   This issue is not addressed in the plaintiff’s submissions nor was there any articulated oral submissions made by the plaintiff at the hearing. For these reasons, this ground of judicial review fails.

6. [85]

   It is now unnecessary to consider Judicial Ground (4).

The Result

1. [86]

   The Appeal Panel has made a jurisdictional error and an error on the face of the record. The decision and the certificate of assessment of the third defendant issued on 4 February 2021 is set aside.

2. [87]

   Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs.

   1. (1)

      A declaration that the certificate and statement of reasons of the third defendant dated 4 February 2021 is set aside.

   2. (2)

      The matter is remitted to the President of the Personal Injury Commission of New South Wales to be determined according to law.

   3. (3)

      The first defendant is to pay the plaintiff’s costs