Waiving a fresh medical examination leaves a claimant unable to allege unfairness
The Supreme Court of New South Wales has dismissed a worker's challenge to her psychological impairment rating, after she declined a fresh medical examination.
The decision in Rogers v Health Services Union NSW [2026] NSWSC 941 arose from a judicial review of a medical Appeal Panel's ruling in a workers compensation claim.
The worker suffered a psychological injury from bullying and harassment while working as a union organiser with the Health Services Union NSW (HSU). The HSU did not dispute the injury but contested her eligibility for a lump sum payment under s. 66 of the Workers Compensation Act 1987 (NSW) (the Act).
The dispute turned on how a medical assessor should rate the worker's functional impairment for "travel" under the Psychiatric Impairment Rating Scale. A Class 2 (mild) rating produced a whole person impairment of 7 percent, while a Class 3 (moderate) rating produced 15 percent – the minimum needed to qualify for a lump sum under s. 65A of the Act.
After the court set aside an earlier Panel decision and sent the matter back, a fresh Appeal Panel again rated travel as Class 2, fixing the impairment at 7 percent. The worker sought judicial review of that second decision on four grounds.
Her main ground alleged that the Panel had denied her a fair hearing. The Panel had found that the worker feared re-exposure to union members, which explained why a supervisor met her at a Newcastle car park, and it reached that view from one doctor's history without re-examining her or inviting submissions. The court rejected the ground, finding that the doctor's account was not ambiguous and did not require further submissions.
The court also noted that the worker had expressly waived re-examination by the second Panel. It said it was "difficult to establish a denial of procedural fairness" where a claimant had declined that examination.
The remaining grounds argued that the Panel went beyond the grounds of appeal when it found that the medical assessor made a "demonstrable error" by not explaining why he disagreed with two other doctors. The court found that this complaint sat within the HSU's case that the assessor had failed to properly review the medical evidence. It held that the Panel had not departed from the grounds on which the HSU brought its appeal.
The court dismissed the challenge and ordered the worker to pay the HSU's costs.
