Ballas v Department of Education (State of NSW)

[2019] NSWSC 234

Supreme Court

New South Wales

Medium Neutral Citation:	Ballas v Department of Education (State of NSW) [2019] NSWSC 234
Hearing dates:	22 February 2019
Date of orders:	08 March 2019
Decision date:	08 March 2019
Jurisdiction:	Common Law
Before:	Wright J
Decision:	(1)   The summons filed on 14 September 2018 is dismissed. (2)   The plaintiff is to pay the first defendant’s costs as agreed or assessed.
Catchwords:	ADMINISTRATIVE LAW – judicial review – decision of a delegate of the Registrar of the Workers Compensation Commission as to whether appeal to Appeal Panel should be allowed to proceed – whether error of law – whether jurisdictional error – whether delegate failed to consider submission that “Approved Medical Specialist” took into account irrelevant considerations and failed to take into account relevant considerations – whether delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale (PIRS) was a matter of discretion rather than an application of the Workers Compensation Guidelines
Legislation Cited:	Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	Bunnings Group Limited v Peter Howard Hicks & Ors [2008] NSWSC 874 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Ferguson v State of New South Wales & Ors [2017] NSWSC 887 Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 Minister for Immigration and Ethnic Affairs v Wu Shan Liang 185 CLR 259; [1996] HCA 6 Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324
Category:	Principal judgment
Parties:	Fiona Ballas (Plaintiff) Department of Education (State of NSW) (First Defendant) Workers Compensation Commission (Second Defendant) Medical Appeal Panel of the Workers Compensation Commission of New South Wales (Third Defendant) Arbitrator of the Workers Compensation Commission (Fourth Defendant)
Representation:	Counsel: Mr B McManamey (Plaintiff) Mr L Morgan (First Defendant) Submitting appearance (Second Defendant) Submitting appearance (Third Defendant) Submitting appearance (Fourth Defendant)   Solicitors: Turner Freeman Lawyers (Plaintiff) Moray & Agnew (First Defendant)
File Number(s):	2018/282756

Judgment

1. By summons filed on 14 September 2018, the plaintiff, Ms Fiona Ballas, claims orders by way of judicial review of a decision of the Registrar of the Workers Compensation Commission of New South Wales, by her delegate, refusing to allow the plaintiff's application to appeal from a medical assessment decision to proceed. The assessment had been made by Dr Michael Hong, a psychiatrist and an Approved Medical Specialist (AMS).

2. The summons joined four defendants. Three of the defendants, being the Registrar of the Workers Compensation Commission (the Registrar), the delegate of the Registrar (the Delegate), and the Arbitrator of the Workers Compensation Commission who issued the certificate of determination based upon Dr Hong’s decision, filed submitting appearances and took no active part in the proceedings. The New South Wales Department of Education (the Department), the first defendant, is the only active defendant.

3. For the reasons which follow, Ms Ballas’s summons should be dismissed with costs.

Background to the claim

4. Ms Ballas was employed by the Department from 1991, and worked as a primary school teacher at Yagoona Public School from 1999. From 2011 to 2016, she was exposed to a series of events that resulted in a significant psychological injury.

5. On 24 October 2016, Ms Ballas brought a claim for permanent impairment compensation. Liability was not disputed. She was referred to Dr Hong, the AMS, to assess whole person impairment (WPI) resulting from a psychiatric/psychological disorder with a deemed date of injury of 24 October 2016.

6. In order to appreciate the relevance of what occurred and the basis of Ms Ballas’s application to this Court, it is necessary to review the statutory framework for the assessment of impairment and the relevant provisions of the Workers Compensation Guidelines, which govern that assessment.

The statutory framework

7. Section 66(1) of the Workers Compensation Act 1987 (NSW) (the 1987 Act) provides:

“A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

Note.

No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”

8. Assessment of impairment is governed by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). If there is a medical dispute concerning permanent impairment of an injured worker, there is a process, under s 321A of the 1998 Act and the regulations made under that section, by which the worker is referred by the Registrar to an AMS who examines the worker.

9. Under s 325(1) of the 1998 Act, the AMS to whom a medical dispute is referred is to give a Medical Assessment Certificate (MAC). The MAC is required by s 325(2) to include details of the matters referred for assessment, a certification of the AMS’s assessment, the reasons for the assessment and the facts upon which the assessment is based. An assessment certified in a MAC is conclusively presumed to be correct as to, among other things, the degree of permanent impairment of the worker as a result of the injury: s 326 of the 1998 Act.

10. The 1998 Act then provides for an appeal against a medical assessment in s 327, which relevantly states:

“(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds:

…

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.

...”

11. The degree of permanent impairment is one of the matters that are conclusively presumed to be correct and thus is appealable under subs (1) and (2).

12. The “criteria” referred to in the ground of appeal available under subs (3)(c) are found in the Workers Compensation Guidelines. Similarly, whether there is “demonstrable error”, within subs 3(d), may depend on whether those Guidelines have been properly applied.

13. Under s 327(4), the Registrar plays a “gatekeeper” role: Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [19]. Before an appeal under s 327 can proceed, the Registrar must be “satisfied” that at least one of the grounds for appeal in subs (3)(a), (b), (c) or (d) has been “made out”. These requirements, as presently formulated, were helpfully considered by Simpson J (as her Honour then was) in Bunnings Group Limited v Peter Howard Hicks & Ors [2008] NSWSC 874 at [55]-[76]. They were not the subject of any dispute in this case.

14. It is necessary to consider in more detail the Workers Compensation Guidelines (the Guidelines), which establish the relevant criteria referred to in s 327(3)(c) and misapplication of which may lead to demonstrable error within subs (3)(d).

Workers Compensation Guidelines

15. The Guidelines are applicable to an assessment of permanent impairment by an AMS as a result of s 322(1) of the 1998 Act. That subsection provides:

“The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”

16. The Guidelines are issued under s 376 of the 1998 Act, which relevantly states:

“376 Issue of guidelines

(1) The Authority may issue guidelines with respect to the following:

(a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury,

….”

17. There are particular requirements, in s 377, for the Guidelines relating to assessment of impairment. That section states:

“(1) This section applies to Workers Compensation Guidelines that relate to the assessment of the degree of permanent impairment of an injured worker as a result of an injury.

(2) Those Guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Australian Orthopaedic Association and other relevant colleges and associations.

(3) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to those Guidelines in the same way as those sections apply to statutory rules.”

18. The Guidelines have the status of delegated legislation: Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [25]-[28]; Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins) at [29].

19. The currently applicable Guidelines are the fourth edition issued on 1 April 2016. These apply to assessments of permanent impairment conducted on or after that date. It was not in dispute that ch 11, headed “Psychiatric and psychological disorders”, was the only part of the Guidelines relevant in the present case.

20. The provisions of ch 11 relied upon by counsel in argument included:

“11.1 This chapter lays out the method for assessing psychiatric impairment. The evaluation of impairment requires a medical examination.

11.2 Evaluation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method.

…

Psychiatric impairment rating scale (PIRS)

11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:

1. Self care and personal hygiene (Table 11.1)

2. Social and recreational activities (Table 11.2)

3. Travel (Table 11.3)

4. Social functioning (relationships) (Table 11.4)

5. Concentration, persistence and pace (Table 11.5)

6. Employability (Table 11.6).

11.12 Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.

…”

21. In addition, it was noted that the “class descriptors”, numbered 1 to 5, for each of the six scales are identified in the six tables referred to in 11.11. The most relevant of those tables are the following:

Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

Table 11.3: Psychiatric impairment rating scale – travel

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2	Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3	Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4	Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5	Totally impaired: may require two or more persons to supervise when travelling.

Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

Table 11.6: Psychiatric impairment rating scale – employability

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job.
Class 2	Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3	Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4	Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5	Totally impaired: Cannot work at all.

22. The remaining relevant paragraphs of ch 11 concern the methodology for calculating the median class score, the aggregate score and the percentage WPI. There was no dispute in the present case that these calculations had been done correctly.

Assessment and certificate

23. From the MAC issued on 14 May 2018 by the AMS, it appears that Dr Hong examined Ms Ballas on 8 May 2018 and had access to documentation which included the General Practitioner’s medical records, and reports from Dr A Pilsky of 13 April 2017, Associate Professor R Kaplan of 30 January 2018 and Dr R Rastogi of 6 November 2017.

24. The AMS recorded that Ms Ballas’s psychiatric diagnosis was major depressive disorder (with possible psychotic features) and panic disorder. He also noted that she was currently taking Temazepam around twice per fortnight and Valium (5mg tablets) maybe three times in a fortnight. He certified that the impairment was permanent, that the degree of permanent impairment was fully ascertainable, and that Ms Ballas did not suffer from any relevant previous injury or pre-existing condition or abnormalities.

25. In the section of the MAC headed “Reasons for Assessment”, the AMS indicated that he had rated her whole person impairment and directed attention to the “PIRS table”. “PIRS” refers to the Psychiatric Impairment Rating Scale, which is the subject of pars 11.11 and following of the Guidelines. The “PIRS table” was the completed “Table 11.8: PIRS rating form”, which was part of the MAC.

26. Attached to the MAC were two tables:

1. “Table 2 – Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002”. This table indicated that Ms Ballas’s psychological condition was assessed as 8% whole person impairment, by reference to ch 11 pp 55 to 60 of the Guidelines, among other things.

2. “Table 11.8: PIRS Rating Form”. That form was as specified in the Guidelines and included the following, in addition to details of Ms Ballas, her employer, her claim and the date of assessment:

Psychiatric diagnoses	1. major depressive disorder (possible psychotic features)	2. panic disorder
3.	4.
Psychiatric treatment	Psychologist, psychiatrist, antidepressant medication
Is impairment permanent?	Yes
PIRS Category	Class	Reason for Decision
Self-care and personal hygiene	2	Reduced self-care. Capable of basic self-management independently.
Social and recreational activities	2	Frequency of social recreation reported to have reduced Sees one friend regularly. Goes to RSL club, around once each month, unaccompanied. Gambles on poker machines, at times $500. Spends around 1 hour at the club.
Travel	2	Does not like leaving her home, due to her anxieties. Capable of going to familiar places unaccompanied.
Social functioning	4	Has lost friendships due to her anxieties. Slapped husband when frustrated. Children become apprehensive, and no longer living with her. Separated from her second husband 8 months.
Concentration, persistence and pace	2	She reported reduced concentration. No performance issues at the new school raised. They don’t know about her mental health history.
Employability and Adaptation	3	Can not manage previous job, change of job. May need to reduce her work duties or hours, as reported difficulty coping with current work.
Score						Median Class
2	2	2	2	3	4	=2
Aggregate Score Impairment							Total	%
+	+	+	+	+	+	15	8

27. Because of its significance in the present case, it should be noted that in arriving at his assessment of a WPI of 8%, the AMS assessed Ms Ballas as falling within class 2 in respect of the “PIRS Category: Social and recreational activities”. It appears that if Ms Ballas had been assessed as class 3 in this category, her WPI would have been 15% (according to the oral submissions) or 17% (according to the submissions that accompanied the application to appeal considered by the Delegate). In either case, she would have been entitled to compensation for that permanent impairment under s 66 of the 1987 Act and would have cleared the “at least 15%” threshold fixed by s 151H(1) of that Act for work injury damages, if otherwise entitled to that relief.

Application to appeal

28. Ms Ballas lodged an application, dated 8 June 2018, to appeal against the decision of the AMS. The grounds of appeal relied upon in that application were:

1. “The assessment was made on the basis of incorrect criteria”; and

2. “The medical assessment certificate contains a demonstrable error”.

29. The application was accompanied by “Draft Appellant’s Submissions”.

30. The Department filed a notice of opposition to appeal against decision of Approved Medical Specialist, dated 29 June 2018. The “Respondent’s Submissions” were attached to that notice.

Registrar’s decision

31. On 17 July 2018, the delegate of the Registrar issued her decision under s 327(4) of the 1998 Act. The decision was in the following terms:

“As I am not satisfied that at least one of the grounds of appeal as specified in section 327(3) has been made out, the appeal is not to proceed.”

32. As a result of that decision, the Arbitrator issued her certificate of determination in this matter on 22 August 2018. That certificate contained the determinations that:

“1. The applicant suffers 8% permanent impairment resulting from psychological injury deemed to have happened on 24 October 2016.

2. The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 24 October 2016.”

33. Ms Ballas wishes to challenge the decision of the Delegate made under s 327(4) of the 1998 Act and the consequential decision of the Arbitrator to issue the certificate of determination on 22 August 2018.

The judicial review application

34. In her summons filed on 14 September 2018, Ms Ballas seeks a declaration that the certificate of determination and the decision of the Delegate are void and of no effect or an order setting aside the decision of the Delegate and remitting the matter to the Registrar for referral to a different delegate to determine the matter according to law, as well as consequential orders.

35. The grounds relied upon in support of this relief under s 69 of the Supreme Court Act 1970 (NSW) were formulated in the summons as follows:

“GROUNDS

1. The statement of reasons and certificate issued by the Second Defendant, constituted by the Third Defendant, on 17 July 2018 contains both jurisdictional error and error on the face of the record.

2. The Certificate of Determination issued by the Fourth Defendant on 22 August 2018 compounds the error committed by the Third Defendant in that it records a degree of impairment (and monetary compensation) based upon the erroneous assessment which was the subject of the appeal against the Medical Assessment Certificate dated 14 May 2018.

3. Errors in respect of the Third Defendant’s decision issued on 17 July 2018:

(a) The Third Defendant erred in failing to determine that at least one of the grounds of appeal in section 327(3) of the 1998 Act had been made out, in particular, a demonstrable error by the AMS.

(b) The Third Defendant erred in point of law when it failed to consider whether the Approved Medical Specialist had considered the correct criteria when assessing Social and Recreational Activities.

(c) The Third Defendant erred in point of law when she considered that what matters were relevant to each category was a matter of discretion rather than an application of the guides.

(d) The Third Defendant erred in point of law when it failed to consider whether the activity of attending at the club by herself to play poker machines was a matter that could properly be taken into account when assessing Social and Recreational Activities.

(e) The Third Defendant erred in point of law when she failed to properly consider the argument made in support of the appeal.

(f) The Third Defendant erred in failing to determine that a Medical Appeal Panel should be constituted to provide an assessment of WPI in accordance with the Guidelines as read with AMA5.

(g) The Third Defendant erred in failing to determine that the Plaintiff had made out a basis for appeal in that it is open to a Medical Appeal Panel to find that the Medical Assessment Certificate should be revoked and replaced with a certificate recording that, in accordance with the Guidelines as read with AMA5.”

36. These grounds were effectively distilled in the course of submissions. Grounds 1, 2 and 3(f) and (g) are essentially consequential and depend on the other grounds being established.

37. The principal, if not the only submission made orally, was that there was an error of law on the face of the record or a jurisdictional error because the Delegate failed to consider the submission that the MAC contained a demonstrable error because the AMS took into account irrelevant considerations, such as attending the RSL Club by herself to play poker machines, when those matters could not properly be taken into account when assessing the plaintiff against the Social and Recreational Activities scale. This can be called the Failure to Consider the Submission Ground. This ground reflects the substance of grounds 3(a), (b), (d) and (e) in the summons.

38. Ground 3(c) appears to raise a different point, namely that there was an error of law on the face of the record made by the Delegate in deciding that the matters relevant to each category or scale were a matter of discretion rather than an application of the Guidelines. This can be called the Discretion as to Category Ground.

The Failure to Consider the Submission Ground

39. Mr McManamey of counsel, who appeared for Ms Ballas, drew attention to the submissions that accompanied the application to appeal against the decision of the AMS (the Appeal Submissions). These submissions clearly fell within “the application and any submissions made to the Registrar”, referred to in s 327(4) of the 1998 Act. They were material that the Delegate, in this case, was required to address in deciding whether to permit Ms Ballas’s appeal to proceed.

40. In particular, it was noted that the Appeal Submissions contained the following:

“When completing the PIRS rating form, the AMS cited as his reasons for assessing social and recreational activities as Class 2 as ‘frequency of social recreation reported to have reduced, sees one friend regularly, goes to RSL club, around once each month, unaccompanied. Gambles on poker machines, at times $500. Spends around one hour at the club.’

By assessing social and recreational activities in the way that he has, the AMS has both failed to take into account relevant considerations and has taken into account an irrelevant consideration.

The assessment of social and recreational activities is carried out in accordance with Table 11.2 of the [Guidelines]. It should first be observed that social and recreational activities are not travel and are not social functioning. It is apparent from a reading of the table that social and recreational activities is directed to the kind of activities that involve interactions with other people. For example, Class 1 refers to being actively involved with clubs or associations. Class 2 refers to be actively involved, e.g. dancing, cheering favourite team.

The table is not directed to solitary activities that do not involve interactions with other people.

… The fact that [Ms Ballas] is able to travel to the RSL club is relevant to the assessment of travel and is consistent with the assessment of Class 2 for that category. It is not, however, relevant to the assessment of social and recreational activities. By including that matter in his assessment, the AMS has both applied incorrect criteria in that he has not properly applied the guidelines and has made a demonstrable error.

When assessing social and recreational activities, the AMS also refers to [Ms Ballas] seeing one friend regularly. … The issue of ability to maintain friendships is relevant to the Class of social functioning not social and recreational activities. To the extent that it is relevant to social and recreational activities, it is only to the extent that [Ms Ballas] responds to prompting by a close friend or tolerates the company of a close friend. It should be noted that the ability to tolerate the company of a close friend is consistent with a rating of Class 4.

[Specific evidentiary matters are referred to] … Her only activity which takes her outside the house is the solitary activity of attending at the RSL club once a month to play the poker machine. When the relevant evidence is properly considered, [Ms Ballas] should have [been] assessed as Class 3 for social and recreational activities.”

41. I accept that the Appeal Submissions expressly raised the argument that when assessing “social and recreational activities”, the AMS took into account irrelevant considerations and failed to take into account relevant considerations, in that:

1. the categories of “social and recreational activities”, “travel”, and “social functioning” are distinct;

2. Table 11.2 indicates that the “social and recreational activities” category is directed to the kind of activities that involve interactions with other people, and not solitary activities, such as gambling on poker machines at an RSL club;

3. the fact that Ms Ballas is able to travel to the RSL club is not relevant to “social and recreational activities” but is relevant to “travel”;

4. the fact that Ms Ballas sees one friend regularly is relevant to “social functioning” not “social and recreational activities”;

5. seeing one friend regularly, to the extent that it is relevant to “social and recreational activities”, is consistent with a rating in class 4 rather than class 2 as assessed by the AMS.

42. The substance of the Failure to Consider the Submission Ground was that the Delegate did not consider or address this argument when deciding not to allow the application to appeal to proceed.

43. If a decision maker fails, in reaching the challenged decision, to address a substantial argument put to the decision maker, or misunderstands it, then there will have been effectively a failure to exercise the jurisdiction entrusted to the decision maker. This is both jurisdictional error and an error of law: Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 at [6], [58], [72] and [75].

44. The argument set out above was a substantial argument put to the Delegate. If she did not address or consider it, or misunderstood it, her decision would be liable to be set aside for jurisdictional error and error of law on the face of the record, as Ms Ballas contended.

45. Ms Ballas submitted that such an error was made by the Delegate in the present case because she considered only whether the AMS had made an error in assessing the class within “social and recreational activities” to which Ms Ballas should be assigned rather than whether the matters taken into account were relevant to the category or scale of “social and recreational activities” at all. It is consequently necessary to examine the Delegate’s reasons in some detail.

46. The Delegate’s reasons contained the following, after recording formal matters concerning the application to appeal:

“Submissions

6. [Ms Ballas] alleges that the AMS has made a demonstrable error and applied incorrect criteria when assessing the appellant worker as Class 2 in the Psychiatric Impairment Rating Scale (PIRS) category of social and recreational activities. [This is effectively repeated at pa 12]

…

Social and Recreational Activities

13. The psychiatric impairment rating scale (PIRS) provides that behavioural consequences of psychiatric disorders are assessed on six scales, each of which evaluates an area of functional impairment (the Guidelines at [11.11]). One of the scales is ‘social and recreational activities.’

14. The AMS assessed class 2 impairment in this category. The appellant submits that the AMS erred and should have assessed Class 3.

15. Table 11.12 of the PIRS [this appears to be a reference to par 11.12 of ch 11 of the Guidelines] provides that impairment on each of the six scales is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. Relevantly Class 2 and 3 of the category of social and recreational functioning provide: [the descriptors were set out here].

16. In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Garling J observed that the classes in the PIRS were examples of activities which would indicate an assessable level of disability, and further, that the boundaries between the classes were not ‘bright line boundaries’ (at [62] – [[65]).

…

20. The AMS found a class 2 for social and recreational activities, noting that she regularly saw one friend. The ability to maintain friendships is also factor common to the PIRS category of social functioning. Similarly, that [Ms Ballas] travels to the RSL club unaccompanied is relevant to the category of travel.

21. [Ms Ballas] submits that the AMS erred by ‘placing great significance on the fact that [she] would attend the RSL club once a month to gamble on poker machines.’ According to [Ms Ballas] this activity is a ‘solitary activity that does not involve interactions with other people. It does not require any type of participation which is contemplated by social and recreational activity’; and the fact [Ms Ballas] can travel to the RSL club is not relevant to the assessment of social and recreational activities.

22. Similarly, [Ms Ballas] submits that the AMS has fallen into error when referring to her seeing ‘one friend regularly because of the ‘issue of ability to maintain friendships is relevant to the class of social functioning and not social and recreational activities.’

23. PIRS categories are examples of activities only ([11.12] of the guidelines) and are ‘generic and general in their description’: Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [62].

24. In my view, [Ms Ballas’s] submission attempts to unreasonably place limitations on the manner in which the PIRS categories are applied by Approved Medical Specialists. The PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS’s discretion based on his or her clinical assessment.

25. I do not accept that the activity of attending the an RSL club once a month to play poker machines is necessarily an activity that ought to fall within Class 3 (Moderate Impairment) of social or recreational functioning, and not class 2 (Mild Impairment) as the AMS found. Whilst the activity may be undertaken individually, it seems to me it is undertaken regularly (not rarely) and requires active involvement (playing machines). The activity does not appear to require prompting by family or friends or the attendance of a support person. In any event, the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination.

26. The AMS’s overall findings are consistent with the description of mild impairment for social and recreational activities. …

27. [Ms Ballas] also refers to [certain other evidence]. …

28. To the extent that the appellant relies on [that other evidence], I note a mere difference of opinion is not a ground of appeal (Merza at [51]). …

29. I am not satisfied that the AMS has made the assessment based on incorrect criteria or that there is a demonstrable error on the face of the MAC. …”

47. Before considering the submissions concerning the Delegate’s reasons, it is worthwhile to acknowledge the well-established principle that, in cases of judicial review or appeals on a question of law from administrative tribunals, the reasons under challenge must be read as a whole and be considered fairly. They are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; [1996] HCA 6 and Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-7; [1993] FCA 456.

48. Ms Ballas submitted that the Delegate, “from the start” at [14] of her reasons, treated the application as being about classes within the relevant scale or category and not about what should have been considered within the “social and recreational activities” category. It was further contended that, by citing Garling J’s decision in Jenkins, the Delegate demonstrated that she misapprehended what she was to consider. This was because the paragraphs from Jenkins relied upon related solely to classes within a category or scale, and not to what are the proper matters to take into account in respect of the scale or category.

49. In my view, these submissions should not be accepted for two reasons. First, the Delegate’s statement at [14] that “[t]he appellant submits that the AMS erred and should have assessed Class 3” was merely a paraphrase of the final submission made to the Registrar by Ms Ballas in her written submissions, which was:

“When the relevant evidence is properly considered, [Ms Ballas] should have [been] assessed as Class 3 for social and recreational activities.”

50. As Ms Ballas’s counsel explained during the oral hearing, her being assessed as Class 3 and not Class 2 for social and recreational activities was what made the appeal worthwhile. If she was assessed as Class 3, her WPI would be 15% (or 17%) and thus she would be entitled to compensation and, potentially, damages.

51. The Delegate referred, at [14], to Ms Ballas’s submission concerning the appropriate class under the heading “Social and Recreational Activities”, after referring to the six scales or categories and mentioning specifically “social and recreational activities” at [13]. If the reasons are read fairly and as a whole, [14] does not indicate that from the start the Delegate treated the application in the present case as being only about classes and not about the distinctions between the different scales or categories, as Ms Ballas submitted.

52. Secondly, the Delegate’s reliance on [62] of Jenkins (at [23] of her reasons) does not establish that she did not address or consider the argument put in Ms Ballas’s submissions. It can be accepted that the citation of Jenkins in that paragraph of the Delegate’s reasons was not strictly apposite. Jenkins at [62] concerned examples given in relation to classes within a particular category or functional area and not whether particular activities fell to be assessed within one or more categories or functional areas. Nonetheless, that decision does establish that the process of rating psychiatric impairment is not to be approached on an overly rigid reading of the relevant provisions of ch 11 of the Guidelines, including the relevant tables (see for example Jenkins at [57]-[65]).

53. Even if the Delegate provided an inapposite citation in [23], she did so while addressing the question of whether the activity of “seeing one friend regularly” was only relevant to the functional area of “social functioning” and not “social and recreational activities” (see [22] of her reasons). That the Delegate was addressing this argument, and not addressing only classes within a particular category or scale, is made clear in the following paragraph, [24], where she concludes:

“In my view, the appellant’s submission attempts to unreasonably place limitations on the manner in which the PIRS categories are applied by Approved Medical Specialists. The PIRS categories are generic and general in description and they are, to some extent, overlapping. …” (emphasis added)

54. The Delegate was expressly addressing the very argument that Ms Ballas contends was not addressed. The Delegate may have misapprehended precisely what was held in Jenkins but she has not misapprehended the argument which had been put by Ms Ballas and which the Delegate was addressing.

55. In regard to [24] of the Delegate’s reasons, counsel submitted that to “use the word ‘categories’ [in [24]] is a bit unfortunate because it does not mean anything. We have scales and we have classes.” If it is being submitted that the word “categories” used in the Delegate’s reasons did not refer to the areas of functional impairment to be assessed by reference to the scales in par 11.11, I do not accept that this is the case.

54. As Mr Morgan, counsel for the Department, noted, the six functional areas identified in par 11.11 of the Guidelines are described, in the Guidelines, as “scales” in par 11.11, “area[s]” in par 11.12 and “PIRS Categor[ies]” in Table 11.8, which is the PIRS rating form. In addition, Campbell J in Ferguson v State of New South Wales & Ors [2017] NSWSC 887 at [25] noted a passage in the Appeal Panel’s decision in that case where it was said “each category within the PIRS evaluates a particular area of functional impairment” (emphasis added). Indeed, the submissions accompanying the application to appeal used “category” to refer to the “travel” scale or functional area in the following passage:

“The fact that [Ms Ballas] is able to travel to the RSL club is relevant to the assessment of travel and is consistent with the assessment of Class 2 for that category.”

57. In my view, it is clear that, when referring to “PIRS categories” in [24] and “categories” elsewhere, the Delegate was referring to the scales or functional areas and not classes within them.

58. As to [25] of the Delegate’s reasons, it was submitted that in this paragraph she had simply not dealt with the submission that the activity of attending the RSL club once a month to play poker machines was not relevant to social and recreational activities but only to another category or categories. It is true that the Delegate does consider which class within “social or recreational functioning” the activity falls into. This, however, is because she was, at that point, addressing the last submission made in Ms Ballas’s submissions accompanying the application to appeal which concerned which class that activity fell into (see the last paragraph of those submissions quoted above). That was not the only argument addressed.

59. It should be noted that at [25], in addition to considering which class the activity fell into, the Delegate said:

“Whilst the activity may be undertaken individually, it seems to me it is undertaken regularly (not rarely) and requires active involvement (playing machines). The activity does not appear to require prompting by family or friends or the attendance of a support person. In any event, the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination.”

60. While the paragraph may not be entirely elegant, it is sufficiently clear, in the context of the reasons as a whole, that the Delegate was here rejecting the argument that the activity in question could not fall within “social and recreational activity” because that category or scale was not “directed to solitary activities that do not involve interactions with other people”, as Ms Ballas submitted in her submissions in support of the application to appeal. The Delegate addressed that argument. In doing so, she accepted that regular activities that required active involvement, even if they were undertaken individually and, in that sense, were “solitary”, could still be relevant to assessing the “social and recreational activities” category of functional impairment, depending on the circumstances revealed by the history and clinical examination. In this way, she rejected Ms Ballas’s argument that such activities were not relevant the “social and recreational activities” category.

61. In summary, a fair reading of the Delegate’s reasons as a whole reveals that she addressed the substance of Ms Ballas’s submission that the assessment had been made applying the wrong criteria and the MAC contained a demonstrable error because the Delegate took into account irrelevant considerations and failed to take into account relevant considerations. In particular, the Delegate:

1. at [21] and [22] adequately summarised Ms Ballas’s relevant submissions, thereby indicating that the Delegate understood what she was required to address;

2. at [23], [24] and [25], considered and rejected the submissions that:

1. the PIRS categories of “social and recreational activities”, “travel” and “social functioning” are distinct and do not overlap so that matters that are relevant to one category are irrelevant to others;

2. the fact that Ms Ballas is able to travel to the RSL club is not relevant to “social and recreational activities” and the fact that Ms Ballas sees one friend regularly is relevant only to “social functioning” and not to “social and recreational activities”;

3. “social and recreational activities” are directed to the kind of activities that involve interactions with other people not solitary activities, such as gambling on poker machines at an RSL club;

3. at [23], [24] and [25] said, in effect, that these submissions should be rejected because the PIRS categories are generic and general in description and, to some extent, overlapping. They are not rigidly exclusive and which category applies is a matter within the AMS’s discretion based upon his or her clinical assessment and the history.

62. For these reasons, I conclude that the Delegate has not misunderstood Ms Ballas’s submission or failed to address it. The Failure to Consider the Submission Ground is not made out.

Discretion as to Category Ground

63. Mr McManamey did not generally contend that the Delegate made an error of law on the face of the record when she rejected the submission of Ms Ballas concerning which matters could be relevant to each category of functional impairment. This is understandable because such a contention would have been inconsistent with Ms Ballas’s position that the Delegate simply did not deal with that submission.

64. Nonetheless, the Discretion as to Category Ground in par 3(c), was not formally abandoned, although in oral submissions it received no specific mention. In these circumstances, I shall deal with it briefly.

65. This ground was formulated as the Delegate “erred in point of law when she considered that what matters were relevant to each category was a matter of discretion rather than an application of the [Guidelines]”.

66. The problem with this ground is that it poses a false dichotomy and does not accurately reflect what the Delegate said. Her point was put in two ways in her reasons:

1. at [24], “[t]he PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS’s discretion based on his or her clinical assessment”;

2. at [25], “the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination.”

67. The Delegate did not say that the question of what activities are relevant to each PIRS category is entirely a matter of discretion for the AMS and does not involve the application of the Guidelines. There was no such dichotomy in her comments.

68. Moreover, there is no doubt that the PIRS categories are generic and general in description. They are only identified at a very high level of generality: “Self care and personal hygiene”; “Social and recreational activities”; “Travel”; “Social functioning (relationships)”; “Concentration, persistence and pace”; and “Employability”. The wording used to describe the categories suggests that some may overlap. For example, impairment in the ability to relate socially may well be reflected in both “social and recreational activities” as well as “social functioning (relationships)”. Similarly, impairment of “employability” may well involve, or result from, impairment in some or all of the other categories. The description of each scale, and the examples given in relation to each class from 1 to 5 within each scale in Tables 11.1 to 11.6, also suggests that overlap is quite possible between different PIRS categories. The PIRS categories, as specified in ch 11, do not appear to be rigidly separate and exclusive.

69. Fairly understood, what the Delegate was saying was that the PIRS categories are as described in the Guidelines and are to be applied as required by the Guidelines. Because of their generality and the generic nature of the words used and examples given, however, application of the categories in accordance with the Guidelines involves the AMS using his or her professional expertise and judgment in the light of the clinical examination and any relevant history. There is nothing erroneous in such an observation.

70. Accordingly, in so far as the Discretion as to Category Ground is still pressed, it has not been made out.

Conclusion and orders

71. Since none of the substantive grounds has been made out, the consequential grounds do not need to be considered. The summons seeking judicial review should be dismissed.

72. Nothing has been raised that would suggest that costs should not follow the event in this matter.

73. Accordingly, the Court’s orders are:

1. The summons filed on 14 September 2018 is dismissed.

2. The plaintiff is to pay the first defendant’s costs as agreed or assessed.

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Decision last updated: 08 March 2019