Supreme Court New South Wales Medium Neutral Citation: Thomas Gray v Geoff Groom Building Pty Ltd [2019] NSWSC 1081 Hearing dates: 14 August 2019 Decision date: 22 August 2019 Jurisdiction: Common Law Before: Leeming JA Decision: Amended summons filed 27 March 2019 dismissed with costs. Catchwords: Judicial review – application to set aside decision of Medical Appeal Panel – need to make out jurisdictional error or error of law on face of record – significance of distinction – whether Panel empowered to rely on medical examination by one of its members – significance of "clinical judgment" – whether Panel failed to make findings or give reasons – whether Panel failed to address substantial argument – whether Panel misapplied Guidelines – application dismissed Legislation Cited: Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), ss 66, 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 327, 331 Cases Cited: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348 Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Campbelltown City Council v Vegal (2006) 67 NSWLR 372; [2006] NSWCA 284 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 Minister for Health v Thomson (1985) 8 FCR 213 Roger v De Gelder [2015] NSWCA 211; 71 MVR 514 Category: Principal judgment Parties: Thomas Gray (Plaintiff) Geoffrey Groom trading as Geoff Groom Building (First defendant) Workers Compensation Commission of NSW (Second defendant) Medical Appeal Panel of the Workers Compensation Commission of NSW (Third defendant) Representation: Counsel: EG Romaniuk SC and S Moffet (Plaintiff) D Stanton (First defendant) Solicitors: Walker Law Group (Plaintiff) Rankin Ellison Lawyers (First defendant) Crown Solicitor's Office (Second and third defendants – submitting appearance) File Number(s): 2019/87301 Publication restriction: Nil Judgment 1. LEEMING JA: Mr Thomas Gray has invoked this Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW) to set aside the decision of a Medical Appeal Panel of the Workers Compensation Commission of NSW dated 26 February 2019. That Panel allowed an appeal against the decision of an Approved Medical Specialist, who had found a whole person impairment of 13%. The Panel assessed Mr Gray's whole person impairment at 14%. However, so called "modified common law damages" under Part 5 of the Workers Compensation Act 1987 (NSW) are only available if the degree of permanent impairment is at least 15%: s 151H. Mr Gray's submissions observed that "the gateway to a claim for 'work injury damages' opens if the Plaintiff secures an assessment of whole person impairment of 15% or greater". Hence, the present proceedings. 2. It is common ground that this Court's examination is confined, in that Mr Gray needs to make out a case of jurisdictional error or alternatively error of law on the face of the record. The amended summons failed to distinguish between jurisdictional error and error of law on the face of the record. The distinction is important, and arises at the outset, because (aside from anything else), it affects the material to which the Court may have regard. The Court of Appeal has repeatedly emphasised this: see, without attempting to be exhaustive, Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [19] ("These considerations require the applicant to identify with a degree of precision which grounds are said to involve jurisdictional error and which errors of law on the face of the record"); Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 at [85] and AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348 at [45] ("As has been repeatedly emphasised, the distinction is important"). 3. The amended summons also failed with any particularity to identify the errors of which Mr Gray complains. It did not comply with the obligation to state "with specificity, the grounds on which the relief is sought": UCPR r 59.4(c). To the contrary, it describes five errors, in paragraphs 11(a)–(e), the first of which is a description occupying eight sentences and more than half a page as to how it is said the Medical Appeal Panel misapplied the guidelines. The third and fourth grounds (each of which contains six sentences) are similarly discursive. 4. Constructively, Mr Romaniuk SC, who appeared with Mr Moffet for Mr Gray, refined the articulation of errors during the course of the hearing, and addressed them in a somewhat different order. These reasons align with the way submissions were developed during the hearing. Factual background 1. Mr Gray suffered an injury to his left hand on 21 October 2015 in the course of his employment with the defendant while using a circular saw. He suffered a partial amputation through the proximal phalanx of his left little finger, and severed tendons in the fourth and fifth fingers. He underwent further surgery, in March and July 2016, and January and July 2017, including having a right anterolateral thigh free flap taken from his right thigh and grafted to the back of his left hand. 2. Mr Gray has made a claim for lump-sum payment pursuant to s 66 of the Workers Compensation Act. He was assessed, on 31 July 2018, as having a whole person impairment of the left upper extremity of 10%, and consequential scarring at 3%, resulting in a whole person impairment of 13%. His solicitor retained Professor Allan Meares, hand surgeon, who expressed the view that his scarring equated to a 9% whole person impairment, while the impairment to his left hand equated to a 13% whole person impairment. The result according to Professor Meares was a whole person impairment of 22%. 3. Mr Gray filed an appeal against that decision in October 2018 pursuant to s 327(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). A Medical Appeal Panel comprising two Approved Medical Specialists (Drs Curtin and Giles) and an arbitrator (Mr Dalley) conducted a preliminary review and determined that Mr Gray should undergo a further medical examination. Their reasons record that: "The Panel was of the view that error had been established and the nature of that error was such that the Panel agreed that examination of the left hand and the scarring was required". 1. Save for a submission going to power, no criticism was made of that aspect of the decision. 2. Mr Gray was examined by Dr Giles on 6 February 2019, and his report was included verbatim as three pages of the 12 page determination. That report described Mr Gray's history as follows: "1. The workers medical history, where it differs from previous records While working as an apprentice carpenter on 21st October 2015, Mr gray sustained a partial amputation of his left little finger, which was treated by open reduction and internal fixation with mini plates and screws; he also sustained lacerations of the extensor tendons of the left ring and middle fingers and these were repaired at the same time. The little finger survived and he subsequently had an extensor tenolysis, a free antero-lateral thigh flap with a bone graft and further tenolysis procedure and two debulking procedures. The history obtained did not differ from the previous records. 2. Additional history since the original Medical Assessment Certificate was performed Current Symptoms: Mr Gray now complains of the following symptoms, 1. Pain in his left hand and on the ulnar side of his left forearm. 2. Reduced sensation on the dorsum of the proximal phalanges of his left little, ring and middle fingers. 3. Reduced sensation along the ulnar border and the tip of the palmar surface of his left little finger; this is hardly surprising because the saw went through the ulnar border and dorsal surface of the proximal phalanx of the finger & the ulnar digital nerve must have been divided. 4. He finds the appearance of the flap on his left hand is embarrassing; nevertheless, he was wearing a short sleeved shirt, so the flap was not hidden in any way. The skin on his left little finger is fragile and blisters easily. 5. The scars on the dorsum of his left hand, on the anterior aspect of the distal end of his left forearm and over his left anterior iliac crest are not noticeable and do not worry him. 6. The scar from where the flap was taken on his right thigh is long and very noticeable; it embarrasses him and he only wears long shorts (which he was wearing today) and, when he goes to the beach (which he does regularly because his mother lives at Allambie Heights), he wears board shorts; however, the scar is functionally stable. Current Treatment: Mr Gray is not currently receiving any treatment." 1. Dr Giles described five scars as follows: "1. The flap on the dorsum of his left hand measures 6 X 5 cms, it is noticeable because it is quite hairy, whereas his hand is not and there is an easily identifiable colour contrast between the flap and the adjacent skin. As the flap is still a little bulky, there is a noticeable contour deformity, even though it has been de-bulked twice. There were no obvious stitch marks. 2. There was a soft, flat, pink and mobile, slightly atrophic S-shaped scar, 6 cms long and up to 0.8 cms wide, around the base of his thumb, on the dorsum of his left hand; there was no contour deformity but there were some faint stitch marks present. The AMS described that scar as "hypertrophic" but, on examination today, it was atrophic. 3. There was a fine, slightly sinuous scar, 7 cms long X 0.3 cms wide, on the ulnar side of the distal end of the anterior aspect of his left forearm. It was soft, pink and mobile and there were no stitch marks, or contour deformities associated with it. 4. There was a faint, transverse, very fine scar, 8 cms long, overlying his left anterior iliac crest. This scar was not easy to see because it was soft, mobile and the same colour as the surrounding skin; there were no stitch marks, but a slight irregularity could be palpated in the underlying bone. 5. The scar from where the anterior thigh flap was harvested, on the anterior aspect of his right thigh was very obvious. It extended from near the groin crease down to the lower one-third of the thigh, it was sinuous and stretched; it was 27 cms long and up top 1.7 cms wide at its proximal end. A very slight contour defect could be palpated, but it was not really obvious and there were no stitch marks." 1. Two pictures of the scars (on his left anterior iliac crest and anterial thigh flap) were included in the report. 2. This aspect of the report continued: "• Mr Gray is conscious of his scars and can locate them. • The flap on his left hand is visible even when he wears normal clothing. • There is a noticeable colour contrast between the scars and the surrounding skin. • The stretched scar is atrophic. • There were some faint stitch marks present with the scar around the base of his thumb on the dorsum of his left hand, but not elsewhere. • None of the scars adhere to the underlying structures. • None of the scars would benefit from further treatment. • The scars do restrict the normal activities of his daily life because they embarrass him and limit the clothes he will wear and they would be aggravated by exposure to sunlight. In my opinion, this puts these scars in the 3-4% WPI range (but not 5-9 range) and in my opinion, they are at the upper end of this range at 4% WPI." 1. The Medical Appeal Panel assessed whole person impairment in respect of the injury to the left hand at 10%, and no issue was taken with that element of the assessment. The challenge in this Court was wholly directed to the assessment based on scarring at 4%, which accorded with the views of Dr Giles. The Panel's reasons in that respect were as follows: "70. The Panel is of the opinion that the scarring satisfies each of the criteria for assessment in the 3% to 4% range and lies at the boundary between the 3%-4% range and the 5%-9% range in three of the four categories that differentiate the 5%-9% range (the other descriptors being the same). 71. However, the description provided by Mr Gray on re-examination and in the statements and reports in evidence with regard to activities of daily living best fits the lower category although at the upper end. The scarring does not restrict his grooming or dressing. Mr Gray therefore does not reach each f the criteria for assessment in the higher category. (Paragraph 14.8 Guidelines). 72. Mr Gray's degree of impairment is closer to the 5%-9% range than to the 2% range and best fits the higher figure in the 3%-4% category. He is therefore assessed at 4% whole person impairment in respect of scarring." 1. The most convenient way of dealing with the various grounds of review is to summarise each of them and resolve them in turn thereafter. The examination by Dr Giles 1. In his summons, Mr Gray submitted that there was no power to delegate the function of examining Mr Gray to one of its members. That submission was withdrawn following the defendant pointing to cl 5.17 of the Workers Compensation Medical Dispute Assessment Guidelines, which were published in the Government Gazette of 21 December 2018. It was common ground that those guidelines applied to Mr Gray's appeal even though it had been commenced in October 2018, consistently with what was stated in their "general introduction", namely, that "These Guidelines apply to all existing disputes in the Commission …". 2. Clauses 5.14–5.23 form a section headed "Procedure of the medical appeal panel". Those guidelines provide as follows: "5.14 A MAP consists of two AMSs and one arbitrator. 5.15 The MAP is to be constituted by the Registrar. Confirmation of the members of the MAP is to be communicated to the parties. 5.16 The MAP will undertake a preliminary review of the matter. 5.17 The MAP may adopt any of the following procedures in accordance with the needs of the individual case: 5.17.1 'on-the-papers' review 5.17.2 further medical examination by an approved medical specialist on the appeal panel 5.17.3 assessment hearing. 5.18 The MAP decides which of the procedures is to be adopted. 5.19 The decision of the appeal panel is to be informed by its assessment of the needs of the particular case. 5.20 Where a further medical examination is required, the Registrar will advise the worker of the time and place of the examination. 5.21 A support person (other than an agent or legal adviser) may accompany a worker to the examination. 5.22 The worker should not bring any additional medical or other reports to the examination, unless specifically asked to do so. 5.23 If it is necessary to bring x-rays or similar documents the worker will be advised of this in the letter from the Registrar." 1. It will be seen that cl 5.17 in terms authorises either the appeal to be determined "on-the-papers" or following further examination by one of the Panel's members, or a further hearing involving all three of the Panel's members. However, Mr Gray submitted that, in the particular case of his appeal, a determination involving "clinical judgment" was required, and that could not be performed by only one member and not all members of the Panel. Further, he submitted that "the needs of the individual case" in cl 5.17, which in his case turned upon the whole person impairment related to his scarring, had not been considered by the Panel, which would not have ordered further medical examination by one of its members had it done so. 2. In addition to the Medical Dispute Assessment Guidelines referred to above, it is also necessary to refer to what I shall call the Permanent Impairment Guidelines (formally, the "NSW workers compensation guidelines for the evaluation of permanent impairment" (4th edition – 1 April 2016)). The Permanent Impairment Guidelines made provision in Chapter 14 for scarring to the skin. Under the heading "Introduction", it was provided: "14.1 AMA5 Chapter 8 (pp 173–90) refers to skin diseases generally rather than work related skin diseases alone. This chapter has been adopted for measuring impairment of the skin system, with the following variations. 14.2 Disfigurement, scars and skin grafts may be assessed as causing significant permanent impairment when the skin condition causes limitation in the performance of activities of daily living (ADL). 14.3 For cases of facial disfigurement, refer to Table 6.1 in the Guidelines. 14.4 AMA5 Table 8-2 (p 178) provides the method of classification of impairment due to skin disorders. Three components – signs and symptoms of skin disorders, limitations in ADL and requirements for treatment – define five classes of permanent impairment. The assessing specialist should derive a specific percentage impairment within the range for the class that best describes the clinical status of the claimant. 14.5 The skin is regarded as a single organ and all non-facial scarring is measured together as one overall impairment, rather than assessing individual scars separately and combining the results. 14.6 A scar may be present and rated as 0% WPI. Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment. 14.7 The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1) is an extension of Table 8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0–9%) due to skin disorders into five categories of impairment. The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0–4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system. 14.8 The TEMSKI is to be used in accordance with the principle of 'best fit'. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories. 14.9 Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value. 14.10 The case examples provided in AMA5 Chapter 8 do not, in most cases, relate to permanent impairment that results from a work-related injury. The following NSW examples are provided for information. 14.11 Work-related case study examples 14.1–14.6 are included below, in addition to AMA5 examples 8.1–8.22 (pp 178–87)." 1. Table 14.1 identified five columns of whole person impairment, of which presently relevant are columns 4 and 5 (3-4% WPI and 5-9% WPI). Each column contained descriptions of criteria corresponding to the band of whole person impairment. Those two columns provided as follows: Criteria 3-4% WPI 5-9% WPI Claimant is conscious of the scar(s) or skin conditions. Claimant is conscious of the scar(s) or skin condition. Description of the scar(s) and/or skin condition(s) Easily identifiable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes. Distinct colour contrast of scar(s) of skin condition with surrounding skin as a result of pigmentary or other changes. (shape, texture, colour) Claimant is able to easily locate the scar(s) or skin condition. Claimant is able to easily locate the scar(s) or skin condition. Trophic changes evident to touch. Trophic changes are visible. Any staple or suture marks are clearly visible. Any staple or suture marks are clearly visible. Location Anatomic location of the scar(s) or skin condition is visible with usual clothing/hairstyle. Anatomical location of the scar(s) or skin condition is usually and clearly visible with usual clothing/hairstyle. Contour Contour defect easily visible. Contour defect easily visible. ADL/treatment Minor limitation in the performance of few ADL and exposure to chemical or physical agents (eg sunlight, heat, cold etc) may temporarily increase limitation. Limitation in the performance of few ADL (including restriction in grooming or dressing) and exposure to chemical or physical agents (eg sunlight, heat, cold etc) may temporarily increase limitation or restriction. No treatment, or intermittent treatment only, required. No treatment, or intermittent treatment only, required. Adherence to underlying structures Some adherence. Some adherence. 1. At the bottom of the table is stated: "This table uses the principle of 'best fit'. You should assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment. Refer to 14.8 regarding application of this table." 1. Mr Gray's submission focussed upon the requirement (so it was said) to use "clinical judgment" in cl 14.9. It was said that in the circumstances of this case, the other members of the panel, one of whom was medically qualified, the other not, were not able to comply with the obligation to use clinical judgment in applying the TEMSKI categories. The photographs reproduced in Dr Giles's report were insufficient to permit that to occur. 2. The Medical Dispute Assessment Guidelines engage s 331 of the WIM Act, thereby regulating the conduct of the appeal. In compliance with cl 5.14, the Medical Appeal Panel constituted to hear Mr Gray's appeal comprised two Approved Medical Specialists and an arbitrator. The two specialists were required to be qualified medical practitioners with specialist expertise in the matters giving rise to the appeal. Each of those people would be able to apply the clinical judgment required in the Guidelines. There is no reason to think that an arbitrator would be able to do so. 3. Although stated in a different context, Studdert J's observation in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235 at [62], to which Mr Stanton, who appeared for the defendant, relied, is apposite here. One member of a Panel conducted an examination, which influenced the other members of the Panel. Studdert J said that "The Appeal Panel was entitled to draw upon the expertise of one of its members, as plainly it did in this case". Studdert J also agreed with and relied upon what had been said by Beaumont J in Minister for Health v Thomson (1985) 8 FCR 213 to the effect that it was reasonable to assume that the defendant was at all times on notice that the members of the committee would be likely to make use of their own expertise and experience in such matters. 4. True it is that cl 14.9 states that an assessor "should" use clinical judgment to determine the exact impairment value. The express reference to the use of clinical judgment there does not deny that in many other aspects of the process described in the Guidelines, clinical judgment will have to be exercised. Indeed, the first "principle of assessment" stated in cl 1.6 is that "Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment …". Further, much of the language of the Guidelines is in technical medical terminology. For example, the principle of "best fit", as stated in 14.8, seems to my mind to carry with it a deal of unstated medical expertise. If, as it states, "detailed reasons" must be given why a category for which the skin disorder does not meet all of the criteria is chosen as that which best reflects the skin disorder being assessed, the obligation to give detailed reasons will require recourse to the training and expertise of the assessor. 5. In submissions in reply, Mr Romaniuk accepted, in my view properly and correctly, that at least in some cases, a qualified medical practitioner could use clinical judgment without seeing the patient (the example given was a radiographer). Mr Romaniuk contended that the second hand reliance upon Dr Giles's report did not permit the other members of the panel to exercise clinical judgment as required by cl 14.9: "HIS HONOUR: Your submission is, when you get to the TEMSKI assessment and the words that an assessor should use clinical judgment, that is something that, what, can't be done without seeing the person? ROMANIUK: We would put it that highly because otherwise what is that other doctor doing? That other doctor is just reading the words of the description, not in a position to assess anything physical to do with the scar; and it is perhaps unique to this particular TEMSKI assessment because it is built around clinical judgment and whether or not to bump up my description or not which clearly arose in the present case, would be in a substantial real and practical way effected by clinical judgment." 1. To that submission there are at least four obstacles. 1. The first obstacle is that the submission seeks to elevate cl 14.9 into a rule of law, whereas it is a clause in a Guideline given limited force by the WIM Act. Even if a provision that an assessor "should use clinical judgment" is regarded as mandatory and is not complied with, it does not without more follow there has been any error of law. 2. The second difficulty is that the Medical Dispute Assessment Guidelines proceed on the basis that one member of the Panel will be an arbitrator who need not be medically qualified and therefore will be unable to exercise clinical judgment. 3. The third is that cl 14.9 is directed to determining the exact impairment value within a range. But Mr Gray was assessed pursuant to Table 14 at 4%, at the very top of the range. Clause 14.9 is not directed to identifying the correct category; that is addressed by cl 14.8. 4. The fourth difficulty is that the submission requires one to form the view that in the particular case of Mr Gray, it was not possible lawfully to determine to have a further medical examination by one member of the Panel. Indeed, it is far from clear how it could be said that even if there was a further assessment hearing (pursuant to cl 5.17.3) an arbitrator who lacked medical qualifications could nonetheless apply clinical judgment. 1. This ground is not made out. It is not necessary fully to analyse all of the above difficulties, which were not fully developed in submissions. The approach articulated by Studdert J in Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd is applicable here. It is sufficient to say that the Panel was empowered, in the circumstances of this case, to proceed pursuant to cl 5.17.2, with one of its members undertaking a further medical examination of Mr Gray, and with the Panel as a whole informing itself based on Dr Giles's report. Procedural fairness/constructive failure to exercise jurisdiction 1. Mr Gray submitted that the Medical Assessment Panel failed to deal with a significant element of his case, namely, that Professor Meares had expressed the opinion that he suffered from a 9% whole person impairment for his scarring, which was accompanied by trophic changes, easily identifiable, not only evident from touch but also visible. This submission turned upon the brevity of what was said to be the dispositive reasoning at [70]–[72], which is reproduced above. It was framed either as a denial of procedural fairness or a constructive failure to exercise jurisdiction, with reliance being placed on a failure to respond to a substantial argument as articulated in Roger v De Gelder [2015] NSWCA 211; 71 MVR 514 at [109]. Necessarily, it was (ultimately) advanced on the basis of jurisdictional error. This was ground (e) of the amended summons. 2. Not only did the Medical Assessment Panel say that it had taken into account all the original documents and the written submissions which were "not repeated in full, but have been considered by the Appeal Panel" but also it summarised the essence of Mr Gray's submission. The very points highlighted by Mr Romaniuk in oral submissions were referred to, expressly, under the heading "Scarring", especially at [54] and [55], when summarising the submissions. It is quite plain, even in the dispositive paragraphs [70]–[72], that the Panel had regard to Mr Gray's submission that (in accordance with Mr Meares's opinion) the scarring fell within the 5% – 9% range, rather than the range found by the original assessor. I do not accept that the submission was not dealt with. The submission was a basic one, and the gravamen of the determination addressed it squarely, by applying Chapter 14 and reaching conclusions which were inevitably inconsistent with those expressed by Professor Meares. 3. This ground is not made out. Failure to make findings and provide reasons 1. Mr Gray accepted that grounds (b) and (c) could be dealt with collectively, amounting to jurisdictional error to make findings and give reasons. The ground did not attach to what was described as the "tension" as to the precise legal status of the guidelines. Rather, it was submitted that "our point about them not understanding that it was on the boundary and it could have been put up, and also that whatever meaning they are giving to scarring and to restriction of grooming and dressing hasn't been exposed." 2. In support of this ground, Mr Gray relied on what had been said in Campbelltown City Council v Vegal (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121], while the defendant relied upon [122]. The passages are as follows: "Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required." 1. Mr Gray also relied upon the statement in cl 14.8 that "the assessor must provide detailed reasons" where the skin disorder did not meet all of the criteria within the impairment category chosen. It was said that, by parity of reasoning, the obligation to provide detailed reasons also applied where, as here, it may have been open to choose the 5%-9% category but that course had not been taken. 2. A second element of this complaint was narrowly focussed upon what was said to be the contradiction, or at least contrast, between Dr Giles's report and the dispositive paragraph [71]. Dr Giles had said that the scars did restrict the normal activities of daily life "because they embarrass him and limit the clothes he will wear". The Panel however had said "the scarring does not restrict his grooming or dressing". The latter picks up the express language in table 14.1 of the Guidelines. 3. Mr Romaniuk contended that the fact that Mr Gray did not consider himself to be free to wear clothes of his choice, something which was prominent in the submissions to the Panel, had been found by Dr Giles but could not be reconciled with the statement that the scarring did not "restrict his grooming or dressing". I do not think this is the correct way to read that portion of the decision. I reach that view merely as a matter of ordinary use of language, but I am confirmed in that conclusion because Mr Gray's submission results in an inconsistency between what Dr Giles reported and what the three men agreed to in applying his report. Contrary to Mr Gray's submission, the sentence "the scarring does not restrict his grooming or dressing" refers to whether the everyday tasks of washing, shaving, getting dressed or undressed and so on, were affected by the scarring. The example given in argument was a heat sensitive scar which might make it difficult or impossible to wash one's hair in a shower. Read in that way, there is no inconsistency. Further, it was accurate to state that Mr Gray made no complaint as to any difficulty in the everyday process of grooming, dressing and undressing. 4. In part, this ground turns upon the fact that in the row described "ADL/treatment" in Table 14.1 there are three words in bold: "and" in the 3-4% WPI column, and "including" and "and" in the 5-9% WPI column. The natural way of reading the latter is that in order to qualify for the 5-9% WPI column in relation to ADL/treatment, the limitations in the performance of few ADL must include some restriction in grooming or dressing. I did not understand there to be any dispute as to that reading of the table. That explains the significance of the second sentence of [71] of the Panel's reasons. Thus, applying the approach stated in the Guidelines, the fact that Mr Gray's skin disorder did not satisfy the ADL/treatment row of the 5-9% WPI was one matter pointing towards the 3-4% column being the "best fit". 5. As noted above, Mr Gray submitted that it was open to an assessor to "put up" the outcome of the application of table 14.1 in circumstances where a claimant satisfied some, but not all, of the criteria in a particular column. It is far from clear to me that that is the case. The application of the principle of "best fit" may indeed, in some cases, have that effect. But it does not by any means follow that in all cases, or indeed in Mr Gray's case, that there was some discretion which needed to be considered and addressed with "detailed reasons" in order to conclude that the appropriate category in which he fell was the only category in which he satisfied all the criteria. The Guidelines required detailed reasons when another category was regarded as appropriate. While that is what Mr Gray sought, it did not mean that there was an obligation to give detailed reasons when the Panel determined not to place his scarring withn a category in which he did not satisfy all the criteria. 6. The foregoing descends, perhaps inappropriately, to the merits of the complaints advanced by Mr Gray. I have done so because of the way the submissions were presented, and in order to illustrate that this aspect of the complaint does not turn on some legal technicality. 7. However, the shorter and equally dispositive proposition is that there is no error of law, still less jurisdictional error, in the Panel giving the explanation that it did in making the finding that it did concerning the absence of a restriction to his grooming or dressing. Error of law in failing to apply the Guidelines 1. Essentially, it was said that there is an error of law on the face of the record in the failure to apply Chapter 14 and Table 14.1 of the Permanent Impairment Guidelines. Aspects of this ground, which was ground (a) of the summons, have already been addressed when dealing with the other grounds. 2. This submission failed to attend to the proposition that even if there were a misapplication or misconstruction of this part of the Guidelines, it does not follow that the error is one of law. However, it is not necessary to take that point any further, because, for the reasons already given, no misapplication or misconstruction of the Guidelines has been established. Orders 1. None of the grounds of challenge has been made out. It follows that the amended summons filed 27 March 2019 should be dismissed. There is no reason so far as I can see why costs should not follow the event. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2019