Henderson v Canterbury Hurlstone Park RSL Club Ltd

[2024] NSWSC 473

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Henderson v Canterbury Hurlstone Park RSL Club Ltd [2024] NSWSC 473

Hearing dates:

24 November 2023

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The certificate and reasons dated 6 April 2023 given by an Appeal Panel appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) are set aside pursuant to s 69 of the Supreme Court Act 1970 (NSW).

(2) The certificate of determination dated 10 May 2023 issued by the Personal Injury Commission is set aside pursuant to s 69 of the Supreme Court Act 1970 (NSW).

(3) The matter is remitted to the President of the Personal Injury Commission of New South Wales for redetermination according to law.

Catchwords:

JUDICIAL REVIEW – Psychological injury – Errors of law – Failure to provide adequate reasons – Failure to exercise statutory jurisdiction – Statutory interpretation – Imported words – Matter remitted to the Personal Injury Commission.

Legislation Cited:

Supreme Court Act 1970 (NSW) s 69

Workplace Injury Management and Workers Compensation Act 1988 (NSW) s 328

Cases Cited:

Beveridge v Staffpond Pty Ltd (t/as Terry White Chemmart) [2023] NSWPICMP 491

Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088, [2003] HCA 26

Ferguson v State of New South Wales [2017] NSWSC 887

Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38

Ibrahim v State of New South Wales (South Western Sydney Local Health District) [2021] NSWPICMP 92

InPeachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781

Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929

Marks v Secretary, Dept of Community [2021] NSWSC 306

McGinn v Ashfield Council [2012] NSWCA 238

Mifsud v Pitador Excavations Pty Ltd t/as JD Concrete Pty Ltd [2022] NSWSC 1010

Queanbeyan Racing Club Pty Ltd v Burton [2021] NSWCA 304

Secretary (Department of Education) v McGrady [2022] NSWPICMP 484

Secretary, Dept of Education v Johnson [2021] NSWPICMP 228

Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255

Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43

Zoric v Secretary, Dept of Education [2023] NSWPICMP 220

Category:

Principal judgment

Parties:

Annette Henderson (Plaintiff)
Canterbury Hurlstone Park RSL Club Ltd (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Member Jane Peacock, Professor Nicholas Glozier and Dr Michael Hong as an Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (Third Defendant)

Representation:

Counsel:

John Mrsic (Plaintiff)
Claire Roberts (First Defendant)

Solicitors:

Grieve Watson Kelly Lawyers (Plaintiff)
Hall & Wilcox Lawyers (First Defendant)

File Number(s):

2023/216155

JUDGMENT

1. This judgment concerns a judicial review of an Appeal Panel (‘Appeal Panel’) in the Personal Injury Commission.

2. The plaintiff is Annette Henderson. The first defendant is Canterbury Hurlstone Park RSL Club Ltd (‘the employer’). The second defendant is The President of the Personal Injury Commission of New South Wales. The third defendant is the Member Jane Peacock, Professor Nicholas Glozier and Dr Michael Hong as an Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW). The second and third defendants filed submitting appearances. The parties relied on a Court Book marked Exhibit A. The plaintiff was represented by John Mrsic of counsel. The employer was represented by Claire Roberts of counsel.

3. By summons filed 15 October 2023, the plaintiff seeks the following relief:

1. An order under s 69 of the Supreme Court Act 1970 (NSW) setting aside the certificate and reasons dated 6 April 2023 given by an Appeal Panel appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘the 1998 Act’).

2. An order under s 69 of the Supreme Court Act 1970 (NSW) setting aside the certificate of determination dated 10 May 2023 issued by the Personal Injury Commission (‘PIC’).

3. An order in the nature of Mandamus remitting the matter to the second defendant for redetermination according to law.

Background

4. Ms Henderson commenced work with the Canterbury Hurlstone Park RSL Club in February 1998, primarily as a marketing assistant/coordinator.

5. From about 2013, she had a new manager, from that time, she felt less supported. In mid-2016, things became much worse, with her co-workers behaving inappropriately. Their conversations were often sexual in nature, rough and involved swearing. Ms Henderson felt this was unacceptable for a workplace and complained. After making a complaint, she felt targeted and excluded.

6. In 2017, Ms Henderson was accused of doing private work for some of the managers at the club; and suspended. When she returned to work, she was asked to enter mediation with the people who had bullied her. Later she resigned. Her last day of work was 4 April 2017.

7. The plaintiff’s grounds of judicial review fall into four main topics. They mainly focus upon social and recreational functioning. They are:

Psychiatric Improvement Scale (‘PIRS’) – Social & Recreational Activities

1. The Appeal Panel failed to engage with the Plaintiffs submissions to the Appeal Panel regarding the Medical Assessor's PIRS assessment of social and recreational activities.

2. The Appeal Panel failed to provide proper reasons in its decision regarding its review of the Medical Assessor's PIRS assessment of social and recreational activities.

3. The Appeal Panel failed to exercise statutory jurisdiction when reviewing the Medical Assessor's PIRS assessment of social and recreational activities.

PIRS Social Functioning

8. Judicial grounds 4 to 6 are:

4. The Appeal Panel failed to engage with the Plaintiff’s submissions to the Appeal Panel regarding the Medical Assessor's PIRS assessment of social functioning.

5. The Appeal Panel failed to provide proper reasons in its decision regarding its review of the Medical Assessor's PIRS assessment of social functioning.

6. The Appeal Panel failed to exercise statutory jurisdiction when reviewing the Medical Assessor's PIRS assessment of social functioning.

Approach to PIRS categories

9. Judicial grounds 7 and 10 are:

7. When reviewing Medical Assessor's PIRS assessment of social and recreational activities the Appeal Panel impermissibly considered and applied its own view of the appropriate Class for that PIRS Category in order to reach its decision.

8. When reviewing Medical Assessor's PIRS assessment of social functioning the Appeal Panel impermissibly considered and applied its own view of the appropriate Class for that PIRS Category in order to reach its decision.

9. The Appeal Panel failed to exercise statutory jurisdiction when reviewing the Medical Assessor's PIRS assessment of social and recreational activities.

10. The Appeal Panel failed to exercise statutory jurisdiction when reviewing the Medical Assessor's PIRS assessment of social functioning.

Interpretation of the Clause 1.32 Guidelines

10. Judicial grounds 11 and 12 are:

11. The Appeal Panel misconstrued Clause 1.32 of the Guidelines NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.

12. The Appeal Panel denied the Plaintiff procedural fairness by not giving the Plaintiff notice of its novel interpretation of Clause 1 .32 of the Guidelines NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment before making and issuing its decision.

11. For convenience, I shall deal with judicial grounds 11 and 12 concerning Clause 1.32 of the Guidelines first, then briefly deal with the other grounds of judicial appeal.

The law

Judicial review

12. Section 69 of the Supreme Court Act 1970 (NSW) reads:

69   Proceedings in lieu of writs

...

after the commencement of this Act—

(c)  the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d)  shall not issue any such writ, and

(e)  shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f)  proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

(3)  The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings—

(a)  jurisdiction to quash the ultimate determination of the court or tribunal, and

(b)  if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.

(4)  For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

Are the reasons of the Appeal Tribunal adequate?

13. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, (‘Wu Shan Liang’) Brennan CJ, Toohey, McHugh and Gummow JJ stated at 291:

“When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280; 115 ALR 1. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued:

“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General v Quin (1990) 170 CLR 1 at 35-6; 93 ALR 1 at 25.

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

14. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (‘Dranichnikov’), Gummow and Callinan JJ stated at [24]:

“[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made) which provided as follows:

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision.”

15. The central issue is whether the Appeal Panel's decision conforms to law. This Court is not empowered to embark on a merits review: Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1.

The Guidelines

16. By way of background, in Ferguson v State of New South Wales [2017] NSWSC 887 (‘Ferguson’), Campbell J explained how the PIRS operates within the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 March 2021) (‘the Guidelines’) at [14]:

“It is necessary to set out the requirements of the Guides as to the evaluation of permanent impairment resulting from psychiatric injury. They are found in the Psychiatric Impairment Rating Scale (PIRS) which is applicable by virtue of Chapter 11 of the Guides. The requirements were summarised by the Appeal Panel in [22] to [24] of its reasons in the following terms:

The Psychiatric Impairment Rating Scale (“PIRS”) is established as the relevant rating indicia by virtue of Chapter 11 of the Guides in both the 09 and 16 Guides, which are the same. The PIRS sets out six categories of behaviour to be assessed, each being divided into five classes. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired by his injury, and the classes between are in an ascending order of impairment.

The assessor is required to classify each category, and apply the resulting scores as set out in Chapter ll. Each class in the six categories has indicia attached, called “descriptors.” Chapter 11.13 provides that:

“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. 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.”

The indicia contained within the PIRS examples in Chapter 11 therefore are not intended to be exclusive, and are subject to the variabilities that accompany a person seeking psychiatric help, such as those matters mentioned - age, sex and cultural norms.”

17. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense: Ferguson at [24].

18. The Guidelines are split into various chapters. Chapter 1 contains the Introduction. Part 2 of that Introduction is a section dealing with the “Principles of Assessment.” A subheading in Part 2 is “Adjustment for the effects of treatment”. Under this subheading appears Clause 1.32.

19. Clause 11.11 of the Guidelines sets out the Psychiatric Impairment Rating Scale:

“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).”

20. It is only categories 11.11(4) and (2) that are the subject of this judicial review.

21. The PIRS rating form for the plaintiff was set out by the Appeal Panel as follows:

Table 11.8: PIRS Rating Form

Name	Annette Henderson	Claim reference number	W3686/22
DOB	Xxxx	Age at time of injury	45 years
Date of Injury	4 Apr 11 2017	Occupation at time of injury	Marketing assistant/coordinator
Date of Assessment	12 October 2022	Marital Status before injury	De facto
Psychiatric diagnoses	Persistent depressive disorder with anxious distress
GAD
Psychiatric treatment	Psychotherapy
Is impairment permanent?	Yes

PIRS Category	Class	Reason for Decision
Self-Care and personal hygiene	2	Ms Henderson attends to hygiene, showering daily without prompting and wearing clean clothes. She wears make-up when she goes to work. She has assistance from her mother with housework and rarely cooks, often relying on purchased meals from Lite and Easy. She comfort-eats, and her weight has fluctuated.
Social and recreational activities	2	She is less socially active but still attends cafés with her sister, niece and friends. She occasionally goes to a local pool to swim, where she has a group of friends.
Travel	2	She is independent with local travel. She recently travelled from her home to Wollongong with her mother and sister, a trip of about one hour each way. She also travelled to Hawaii in 2019 with her sister but found the trip challenging. She will not leave her local area without support.
Social functioning	2	She has continuing close relationships with her partner, mother, sister, brother, niece and about four friends. She is estranged from her twin brother, who found her behaviour post-injury challenging. She has withdrawn from some friends, especially those who work for The Club.
Concentration, persistence and pace	3	She has subjective difficulties with concentration, decision-making and memory. She manages in her current workplace, but it is a protected environment where they make significant allowance for any challenges she has. During my 80-minute interview, she struggled to recall details and event sequences.
Employability	3	She is working 24 hours a week in a less demanding workplace, supported by a caring and compassionate manager, and where her partner is the boss.

22. Clause 11.12 of the Guidelines provides:

“11.12 Impairment in each area is rated using class descriptors. Classes range from 1 to 5 in accordance with severity. 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.”

Clause 1.32 of the Guidelines

23. Clause 1.32 of the Guidelines provides as follows:

“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”

24. In the Appeal Panel’s decision, it noted that the Medical Assessor addressed the issue of treatment and the Medical Assessor’s decision not to increase the plaintiff’s WPI percentage. The Appeal Panel noted that the Medical Assessor’s decision was consistent with Clause 1.32 of the Guidelines, as the claimant has not had a substantial or complete elimination of her impairment resulting from her treatment.

25. In relation to clause 1.32, the Appeal Panel stated:

“The appellant’s submissions are largely directed to the treatment allowing the appellant to return to part-time work. Employability is but one head of the PIRS categories under which impairment is rated. Allowance for the effects of treatment is only possible when treatment has resulted in substantial or total elimination of the appellant’s permanent impairment. This applies across all categories. This has not been the result of treatment in this case and the Medical Assessor has not erred in this regard.”

26. Judicial ground of review 11:

“Employability is but one head of the PIRS categories under which impairment is rated. Allowance for the effects of treatment is only possible when treatment has resulted in substantial or total elimination of the appellant’s permanent impairment. This applies across all categories (my emphasis).”

27. Judicial ground of review 12 follows on from judicial ground of review 11, which I shall refer to shortly.

The plaintiff’s submissions

28. The Appeal Panel cited no authority for the proposition that “This applies across all categories”. In other words, no legislative provision, regulation, rule, guideline, or case was called in aid of such a fundamental principle.

29. Applying the Appeal Panel’s approach, in order for a Medical Assessor to make an adjustment for the effects of treatment, a worker would have to prove at a bare minimum a substantial elimination of their impairment across all 6 categories. The chances of these circumstances prevailing are either nil or close to nil. This approach would make Clause 1.32 of the Guidelines nugatory. The authors of the Guidelines are presumed not to have drafted a useless provision. Accordingly, the Appeal Panel’s interpretation of Clause 1.32 must be rejected as a matter of law. The Appeal Panel has thereby fallen into legal error.

30. This error alone means that the Appeal Panel’s decision ought to be quashed and remitted to the PIC to allocate the medical dispute to a differently constituted Appeal Panel.

The employer’s submissions

31. The errors in judicial grounds 11 and 12 is that the Appeal Panel “misconstrued Clause 1.32” of the Guidelines (paragraph 11).

32. That clause, which is not specific to psychological injuries, provides that:

“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”

33. Here, there was no allowance made by the Medical Assessor. The Medical Assessor directly addressed the requirements of cl 1.32 in stating his opinion that there had not been “substantial or complete elimination of impairment with treatment” (Watson, Annexure E, page 290).

34. This was challenged by the plaintiff, who made submissions, which were carefully considered by the Appeal Panel (which found no error in the Medical Assessor’s decision). The plaintiff had an opportunity to be heard (cf Marks v Secretary, Dept of Community [2021] NSWSC 306, [67]).

35. The Appeal Panel’s observation at [44] that the clause required “substantial or total elimination of… permanent impairment”, not specific to any particular PIRS category, is entirely consistent with the wording of the provision (see generally Kempe at [30] regarding the Guidelines having the effect of subordinate legislation). The fact that a maximum of 3% in total can be added presumably in cases of complete elimination, though this is not expressly stated, is also consistent with the clause not being specific to any one of the six PIRS categories.

36. In InPeachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781, Adamson J stated at [56]:

“The comparison required by cl 1.32 would appear to be both qualitative and quantitative. There must be effective long term treatment which results in an “apparently substantial or total” elimination of the original permanent impairment. The fact that an adjustment of either 1%, 2% or 3% is available as a matter of discretion would tend to suggest that there is a range between substantial and total which would permit the selection of one of those three figures. If cl 1.32 had been intended to be satisfied by a mere mathematical comparison of assessments of % WPI at different times (one absent such treatment and the other when treatment had had its effect), one would have expected the draftsperson to state that this was all that was required. Moreover, if the comparison required was merely between WPI percentages, it could be expected that the adjectives “substantial” and “total” would be defined numerically rather than by references to adjectives which would appear to warrant an evaluative, qualitative assessment.”

37. No authority is cited for the plaintiff’s proposition that the chances of a treatment resulting in substantial elimination of impairment in all PIRS categories is “nil or close to nil” [69]. By contrast, if “total elimination” of impairment by treatment was impossible then that aspect of the clause would lack meaning. Further, the employer does not agree that the effect of the Appeal Panel Decision at [44] was to suggest that an adjustment would only be made if impairment in each of the six PIRS categories could be shown to have individually and separately been reduced by treatment. The clause, which is not specific to the PIRS categories, refers generally to a substantial or total elimination of impairment – as was reflected in the Medical Assessor’s finding that, generally, “there has not been a substantial or complete elimination of impairment with treatment” (Watson, Annexure E, page 290).

38. There are many examples of appeal panels observing that the extent of elimination of impairment necessary to engage cl 1.32 is high. There are a number of cases that explain. For example, Ibrahim v State of New South Wales (South Western Sydney Local Health District) [2021] NSWPICMP 92, an appeal panel found at [80] that:

“It was clear that the appellant used medication which had some effect on her condition and enabled her to sleep well. However, the Guidelines provide that there must be substantial or complete elimination of impairment for an assessor to increase the percentage of WPI. There has not been a substantial or complete elimination of permanent impairment in this case and therefore the assessor cannot make an adjustment for effects of treatment.”

39. In Secretary, Dept of Education v Johnson [2021] NSWPICMP 228, an Appeal Panel noted at [52] that:

“The word “substantial” must be read in conjunction with the words “or total elimination”. The proper construction of Chapter 1.32 is that where there is an apparent substantial elimination, or a total elimination, of the applicable WPI, further compensation can be paid. Where an injured person is under treatment which has not substantially eliminated his/her entitlement to WPI, there is no point in awarding additional compensation to that which is already available under Chapter 11 of the Guides. Chapter 1.32 is designed to compensate a person who, whilst still suffering an illness, has his/her entitlement reduced or eliminated as a result of long-term effective treatment.”

40. The finding that the modest improvement in some of the plaintiff’s symptoms as a result of treatment was not “substantial” was open to the Medical Assessor. The employer denies that an error as alleged is contained within the Appeal Panel’s reasons.

The plaintiff’s submissions in reply

41. The core complaint that the plaintiff makes was that it was impermissible for the Appeal Panel to effectively insert the words “this applies across all categories” into Clause 1.32. It had no warrant to do so. The Guidelines have the effect of subordinate legislation. The Appeal Panel did not have the authority to read down or limit Clause 1.32 in the way it did.

42. The statutory task of the Appeal Panel was to carefully consider the plaintiff’s submission below in relation to Clause 1.32 and to either accept or reject that submission and to provide reasons for accepting or rejecting the submission. No part of the Appeal Panel’s task involved rewriting the Guideline. While attempting to perform its statutory task, the Appeal Panel distracted itself by misconstruing Clause 1.32 and thereby led itself into further error.

43. The employer has not cited any authority let alone NSW Court of Appeal or Supreme Court authority which supports the insertion or implication of the words “this applies across all categories” into Clause 1.32.

44. The employer has cited a number of Appeal Panel decisions “observing that the extent of elimination of the impairment necessary to engage cl 1.32 is high”. With respect, that is not the issue before this Court. That is not the point the plaintiff agitated in its primary submissions.

Resolution

45. The plaintiff complains that the Appeal Panel effectively read words into Clause 1.32 which are simply not there. There is no requirement in Clause 1.32 that an injured worker must demonstrate improvement (due to the effects of treatment) in each and every PIRS category.

46. The employer has correctly submitted that Clause 1.32 is not specific to PIRS categories. It refers to substantial or complete elimination of impairment with treatment. The Medical Assessor correctly applied Clause 1.32. The Appeal Panel added a more restrictive interpretation of Clause 1.32. In doing so, it misconstrued Clause 1.32.

Judicial ground 12 – procedural fairness

The plaintiff’s submissions

47. The error in judicial ground 11 above was compounded by the fact that neither the plaintiff nor defendant agitated for such an interpretation of Clause 1.32 of the Guidelines and the Appeal Panel gave no notice to the parties that it was contemplating such a novel interpretation. The plaintiff was therefore denied an opportunity to be heard on the proposed interpretation and to make submissions to the Appeal Panel arguing against such an interpretation. This has resulted in procedural unfairness to the plaintiff. For this reason also, the Appeal Panel’s decision ought to be quashed.

The employer’s submissions

48. The alleged error is that the Appeal Panel “denied the plaintiff procedural fairness by not giving the plaintiff notice of its novel interpretation of Clause 1.32 of the NSW Compensation Guidelines for the Evaluation of Permanent Impairment before making and issuing its Decision.”

49. As above, the employer denies that the Appeal Panel’s approach was novel. The Appeal Panel considered the plaintiff’s claim that the Medical Assessor’s decision (also finding that no figure should be added pursuant to cl 1.32) contained error and found that no such error arose. I am not persuaded that the plaintiff was denied an opportunity to be heard.

The plaintiff’s submissions in reply

50. The employer and the plaintiff are at odds as to whether the Appeal Panel’s interpretation and/or application of Clause 1.32 was novel.

51. The plaintiff maintains that the Appeal Panel’s construction of Clause 1.32 was novel.

52. Given its intended approach towards Clause 1.32, the Appeal Panel ought to have sought submissions from the parties below as to the proper construction of Clause 1.32. Obviously, it did not so do. The plaintiff was denied an opportunity to be heard on this point below. This in turn allowed the Appeal Panel to lead itself into further error.

Resolution

53. As the Appeal Panel erred in its interpretation of Clause 1.32, the amended summons ought to be dismissed. The parties have reached an agreement that, regardless of the outcome, each will bear their own costs.

54. The Appeal Panel has given a novel interpretation of Clause 1.32 of the NSW Compensation Guidelines. I shall now briefly address the other grounds of review.

Failure to provide adequate reasons.

55. The first, second and third grounds of judicial review can be dealt with together as they deal with overlapping subject matter.

56. On the obligation to give reasons, the Appeal Panel stated at [13] of its decision:

“In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact 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. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.”

Judicial Review Ground 1 to 3 – PIRS Social and Recreational Activities

57. The plaintiff submitted that the Appeal Panel failed to address the core issue that Dr Andrews’ PIRS reasoning is at odds with the history that he took from the plaintiff.

58. The employer submitted that the Appeal Panel clearly engaged with the plaintiff’s submissions in relation to social functioning, particularly at [18], [24], [36]-[40] of its assessment.

59. The plaintiff submitted in reply that this was a superficial attempt to engage with the plaintiff’s argument and the Appeal Panel did not engage with the plaintiff’s core complaint.

60. The essence of the plaintiff’s appeal was summarised by the Appeal Panel as follows:

“The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3.”

61. The Appeal Panel referred the ‘Psychiatric impairment rating scale’ (at [36]) and the differing opinions of Dr Chow and Dr Young as to the degree of impairment in the plaintiff’s social functioning (at [39]). The Appeal Panel then concluded at [40] of its decision:

“The Appeal Panel considers that an assessment of a mild impairment at Class 2 accords with the criteria in that Class. Social functioning is concerned with the quality of the relationships able to be maintained by the appellant after injury. The appellant has been able to maintain good relationships with her partner, other family members and a few friends. The Appeal Panel can discern no error in the Class 2 rating which is the best fit.”

62. The plaintiff submitted that the Appeal Panel failed to engage with her submissions or provide proper reasons in their assessment regarding an alleged fundamental error made by Dr Andrews in his assessment.

63. The employer submitted that the Medical Assessor’s reasons were adequate. The employer submitted that the plaintiff’s argument that the Appeal Panel failed to address essential matters was tending towards merits review: Ming v DPP at [15].

64. The plaintiff submitted that while she was allowed to speak, she was not listened to, which amounted to a failure to exercise statutory jurisdiction by the Appeal Panel.

65. The employer submitted that the plaintiff’s argument as to why the Medical Assessor failed to exercise statutory jurisdiction is not clearly identified but assumed that it was due to not considering an essential matter.

66. The plaintiff submitted in reply that her core complaint was not dealt with, that being, the inconsistency between the history in the body of the Medical Assessment Certificate (‘MAC’) and the reasons given for awarding Class 2.

67. The Appeal Panel quoted the MA’s history of the plaintiff’s incident, symptoms, work history, social activities, and treatment. The Appeal noted that this ‘history was broadly consistent with the other evidence before him’ (at [21]). The quotation refers to the plaintiff’s previous holidays, relationships, and social activities before the accident.

68. In appeal ground 2, the plaintiff submitted that the Appeal Panel did not expressly refer to the estrangement with from her twin brother.

69. The employer submitted that this estrangement is expressly referred to. Paragraph [37] of the Appeal Panel’s decision reads:

“37. The Medical Assessor assessed Class 2 with the following reasoning:

"She has continuing close relationships with her partner, mother, sister, brother, niece and about four friends. She is estranged from her twin brother, who found her behaviour post-injury challenging. She has withdrawn from some friends, especially those who work for The Club." [my emphasis added]”.

70. The plaintiff submitted in reply that her estrangement from her brother was not dealt with.

Judicial Ground 2

The plaintiff’s submissions

71. The plaintiff made submissions to the Appeal Panel in relation to the PIRS Category of Social and Recreational Activities. Those submissions were not properly dealt with by the Appeal Panel.

72. In submissions, the plaintiff’s solicitor recited Dr Andrews’ history of the worker’s pre-injury social and recreational activities. That history disclosed an active lifestyle and international travel often with friends.

73. The plaintiff’s solicitor then went on to recite Dr Andrews’ history of the worker’s post-injury social and recreational activities.

74. There was a dramatic contrast between the pre-injury and post-injury histories which the plaintiff’s solicitor went on to summarise [304] as follows

“In summary, as a result of her injury, the worker has gone from having an active social life with family and friends, attending cafes, BBQs, movies, and events, and travelling overseas with friends, to now having no hobbies or projects, rarely going out and only then with her husband and close family or else not coping, refusing social invitations, and finding even going to a cinema with her husband overwhelming.”

75. The plaintiff’s solicitor then noted at [304]:

“In contrast to the observations in the detailed reasoning sections of the MAC, Dr Andrews in the PIRS table (p10) simply states:

“She is less socially active but still attends cafes with her sister, niece and friends. She occasionally goes to a local pool to swim, where she has a group of friends."

76. The plaintiff’s solicitor then submitted at [305] that Dr Andrews’ reasoning in the PIRS table for this category was inconsistent with the history that he himself took in the body of the report in the following respects:

1. There is no mention whatsoever of attending cafs with friends in the body of the report. There is mention of seeing her mother, sister, and her adult niece, and that that “may go walking together or to a café.” (p 4), as a summary of what her entire social life now is. This is very different to attending cafés with friends.

2. There is no mention in the report of a “group of friends” at the local swimming pool. She had only recently started attending, at the encouragement of her psychologist (see above). The report records she is “often invited to social outings with people she knows from the pool but usually refuses”.

77. The plaintiff’s solicitor then submitted as follows at [305]

“The PIRS summary makes no mention of ceasing all hobbies and projects, rarely going out (and then only with her husband or close relatives), refusing social invitations, and finding even going to the movies overwhelming.

…

It is submitted that applying the correct criteria the worker ought properly be assessed as moderately impaired in this category (class 3), the descriptor for which in the Guidelines being:

“Rarely goes out to such events, and mostly when prompted by a family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”

78. The plaintiff’s solicitor concluded his argument submitting that the inconsistencies between the body of the report and the PIRS summary constitute a demonstrable error in the MAC at [305]

79. The Appeal Panel noted at [11] of its Reasons that:

“Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.”

80. If the Appeal Panel was suggesting that the plaintiff’s submissions had been repeated in part in its reasons, then it is perhaps difficult to see exactly where in the reasons that has occurred in relation to the plaintiff’s core complaints about the PIRS ratings. Certainly, the underlying substance of the plaintiff’s submissions are not repeated in full or in part or even paraphrased or summarised.

81. More importantly though, the Appeal Panel did not deal with the plaintiff’s chief complaints.

82. The first complaint is that Dr Andrews’ PIRS reasoning is at odds with the history that he himself took from the plaintiff. The history taken by a Medical Assessor is critical and the PIRS reasoning ought to accord with that history. On the history that Dr Andrews took from the Plaintiff he ought to have rated her as having a moderate impairment for Social and Recreational Activities. That fundamental error should have been apparent to the Appeal Panel.

80. The plaintiff made careful submissions to the Appeal Panel regarding this fundamental error by Dr Andrews. Despite this, the Appeal Panel did not engage with those submissions. It appears that the Appeal Panel was distracted from its important statutory task by formulaic statements.

81. The Appeal Panel’s core function was to examine the plaintiff’s complaints, to consider them carefully and to provide reasons to the parties for either accepting or rejecting the plaintiff’s submissions. This the Appeal Panel did not do.

82. The plaintiff was given an opportunity to be heard by the Appeal Panel, the plaintiff “spoke” but was not in fact listened to by the Appeal Panel.

83. This error here can also be characterised as a failure to provide proper reasons but more fundamentally as a failure to exercise statutory jurisdiction.

84. For these reasons the Appeal Panel’s decision must be set aside on the ground of legal error and/or failure to exercise statutory jurisdiction.

The employer’s submissions – Judicial grounds 2 and 3

88. The employer submits that the plaintiff’s submissions before the Appeal Panel in relation to the assessment of social and recreational activities were clearly engaged with, including particularly at Appeal Panel [18], [24], [29] – [35].

89. The plaintiff accepts that the Medical Assessor took a detailed history. It is not in issue that at the time the Medical Assessor reviewed the plaintiff, she was attending cafés and attending a pool, where she had made friends. As the employer noted in its submissions to the Appeal Panel (Watson, Annexure G, page 314 at [18]), there had many references in the reports of the plaintiff’s counsellor, Maria Simonetta, annexed to the ARD that referred to the plaintiff socialising with friends (eg, Watson, Annexure C, page 122 describes a picnic with friends; page 128 describes another picnic with a friend and a cousin). As the employer submitted below and the Appeal Panel accepted, there was no evidence that the plaintiff had been unable to go out without a support person (Watson, Annexure G, page 314 [17]; Appeal Panel Decision [35]).

90. There was no failure to respond to a substantial and articulated case that had been advanced by the plaintiff.

91. Chen J addressed a similar ground in Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 (‘Finnegan’) from [80]; see too Ming v DPP [2022] NSWCA 209 (‘Ming v DPP’), [12] (per Kirk JA). As Kirk JA noted in Ming v DPP, a “risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review” (at [15]); see also Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 (‘Lancaster’) at [78].

92. The employer does not agree that the Medical Assessor’s observations in relation to the plaintiff’s attendance at a café and socialising with pool acquaintances were inconsistent. 

93. As Chen J recently wrote in Finnegan at [50]:

“a mere error of fact which is patent on the face of the reasons for a decision does not render the decision liable to be set aside in proceedings by way of judicial review”: [AAI v Chan [2021] NSWCA 19 per Leeming JA] at [47]. Secondly, the supervisory jurisdiction of the Court, under s 69 of the Supreme Court Act, is available to correct jurisdictional error, or error of law on the face of the record, and only errors in fact-finding when the error is within one of these categories: Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [8]. Thirdly… whether there is [any legal error] will turn upon proper analysis: “no amount of formulary” will transform something into a legal error if it is not: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527; [1990] FCA 689.”

94. The employer also submits that the Appeal Panel’s reasons were adequate.

95. In Lancaster at [45], Basten JA (after summarising the effect of the High Court’s decision in Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43) indicated that the purpose of reasons given by an appeal panel is:

“to ensure that, to the extent possible, any error of law in the reasoning of the Appeal Panel is revealed and may be the subject of an application for judicial review. However, as a practical matter, the Appeal Panel is likely to determine the question before it as a matter of expert medical opinion, the basis for which is peculiarly a matter of its special expertise and which will rarely give rise to any error of law, except on the basis that it is devoid of support in the material before the panel.”

96. See too Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095 (‘Kempe’), at [60] (per Griffiths AJA).

97. In the present case, the Appeal Panel’s reasons for concluding that there was not an error in the Medical Assessor’s determination that the plaintiff fell within “class 2” in relation to social and recreational activities is exposed.

98. The reasons of the decision maker should also not be examined with an eye keenly attuned to the perception of error: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [67] per Preston CJ citing Wu Shan Liang at 291.

99. Finally, the basis on which the Appeal Panel is said to have “failed to exercise statutory jurisdiction” is, respectfully, not clearly identified in the plaintiff’s submissions. The employer expects that the plaintiff may be relying on a claimed constructive failure to exercise jurisdiction on the basis of a failure to consider some essential matter (see Finnegan, [85]; and Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088, [2003] HCA 26, [24]).

The plaintiff’s submissions in reply

100. The employer submitted that the plaintiff’s submissions below in relation to the PIRS Category of Social and Recreational Activities “were clearly engaged with” by the Appeal Panel particularly at [18], [24], [29]-[35] in the decision of the Appeal Panel.

101. The plaintiff’s response to this submission is that while there was a superficial attempt to deal with the plaintiff’s arguments at an abstract level, the Appeal Panel did not deal with the plaintiff’s core complaint i.e. the inconsistency between the history in the body of the MAC and the reasons given for awarding Class 2.

102. The employer states that it “does not agree that the Medical Assessor’s observations in relation to the plaintiff’s attendances at a café and socialising with pool acquaintances were inconsistent”. But herein lies the problem: the employer is here attempting to do the task which the Appeal Panel failed to embark upon. The Appeal Panel did not engage with the plaintiff’s submissions below: it did not state that it found no inconsistencies and provide reasons for that conclusion. The Appeal Panel did not perform its core task.

103. The employer submits its view that the Appeal Panel’s reasons were adequate. The plaintiff’s response is thus. Far from being adequate, the Appeal Panel did not even take a position and resolve the inconsistencies alleged by the plaintiff below let alone provide adequate reasons for its conclusion regarding them. It is trite that an Appeal Panel must expose its path of reasoning. That did not happen here because the Appeal Panel did not even get to the point of engaging with the intellectual content of the plaintiff’s submissions below.

PIRS Scale – Social & Recreational Activities

The plaintiff’s submissions

104. The member lists the specific errors that are alleged by the claimant regarding the medical assessment conducted, these include an error in assessment of two of the PIRS categories as well as a failure to make allowance for the effects of treatment in respect of social functioning, social and recreational activities and work.

105. The Member outlines the requirements that the Medical Review Panel must adhere to, including the fact that they are not permitted to “disturb the ratings of a PIRS scale” on the grounds of a difference of opinion instead an actual error must be established.

106. The Member then outlines some of the evidence that the Medical Assessor considered when coming to his conclusions, these included, amongst others, the claimant’s activities of daily living, the claimants symptoms, the claimant’s present treatment and her medical history.

107. On the role of the Medical Assessor in evaluating the PIRS categories, the Appeal Panel stated at [20] of its decision:

“The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.”

108. The plaintiff also made submissions to the Appeal Panel for the PIRS Category of Social Functioning. Those submissions were also not properly dealt with by the Appeal Panel.

109. The plaintiff’s solicitor contended that by applying the correct criteria the PIRS assessment for social functioning ought to have been assessed as “moderate” class 3 under the Guidelines [305].

110. Crucially, the plaintiff’s solicitor submitted at [306] as follows

“Importantly however, she is as a result of her injury, now totally estranged from her twin brother, to whom she was previously very close (p4). The MAC records that he has “coped poorly with her mental illness”. In early 2022, the worker told Dr Andrews “he blew up at me and abused me, calling me a drama queen” (p4).”

111. The plaintiff’s solicitor went on to submit at [306]

“It is submitted that the worker’s reduced social functioning, including total estrangement now from her twin brother, is more than a mere “minor” impairment under the Guidelines.

The worker’s previously established relationships are severely strained – she is totally estranged from her twin brother and has lost friendships.

Applying the correct criteria, this qualifies as “moderate impairment” (class 3) under the Guidelines.”

112. Dr Andrews most definitely had a history that since the injury the plaintiff has become estranged from her twin brother [288], [291] and [294]. He even referred to that crucial history in the reasoning in his PIRS rating.

113. Obviously, estrangement from a sibling is a very significant matter. However, estrangement from a twin sibling is an even more important consideration. The plaintiff’s solicitor’s complaint was that this crucial fact combined with the worker’s other reduced functioning pointed to Dr Andrews having applied incorrect criteria when it came to his rating of Social Functioning.

114. The Appeal Panel did not properly deal with this core submission by the plaintiff’s solicitor. It needed to carefully consider whether Dr Andrews had indeed applied incorrect criteria, consider the plaintiff’s submission to it in that regard and accept or reject that submission with cogent reasoning which squarely dealt with the core complaint rather than skirting around it.

115. Failure to deal with an argument seriously advanced by Counsel (or in this case the plaintiff’s solicitor) can give rise to an error of law. In this case the error is made out.

116. This legal error here can also be characterised as a failure to provide proper reasons but more fundamentally as a failure to exercise statutory jurisdiction.

117. Accordingly, legal error is established and for this reason alone the Appeal Panel’s decision should be quashed.

The employer’s submissions

118. The second alleged error is framed similarly to the first, except in relation to the assessment of social functioning – i.e., that there was:

1. A failure to engage with submissions (paragraph 4);

2. A failure to provide proper reasons (paragraph 5); and

3. That the “Appeal Panel failed to exercise statutory jurisdiction when reviewing the Medical Assessor’s PIRS assessment of” social functioning (paragraph 6).

119. The employer repeats and relies on its submissions in relation to the first alleged error above.

120. The Appeal Panel clearly engaged with the plaintiff’s submissions in relation to social functioning, particularly at paragraphs [18], [24], [36]-[40].

121. The Appeal Panel did not fail to consider the plaintiff’s estrangement with her twin brother – that topic is expressly referred to at [37] and [40]. It is not in dispute that the plaintiff’s relationships with her partner, mother, sister and niece remained intact – an assessment of “class 2” was accordingly open to the Medical Assessor, as the Appeal Panel found.

122. In relation to the claimed failure to exercise statutory jurisdiction (addressed at plaintiff’s submissions [57]) the employer refers to and relies on its submission at [30] above.

The plaintiff’s submissions in reply

123. As the employer says, the plaintiff makes a complaint here similar to its complaint under the first error. Of course, here a different PIRS Category is involved – namely, Social Functioning.

124. At [34] the employer says that the estrangement of the plaintiff’s twin brother is expressly referred to at [37] and [40].

125. When you turn to [37] of the Appeal Panel’s decision, you find that the reference to the twin brother is merely a quote from the decision of the Medical Assessor. Quoting the decision below is not dealing with the topic in any meaningful way. There is no engagement with the plaintiff’s submission below and no reasons provided for the acceptance or rejection of the submission.

126. When you turn to [40] of the Appeal Panel’s decision, you do not find that the topic of the estrangement of the twin brother is “expressly referred to”. Indeed, the topic is not referred to at all in [40].

127. This is the nub of the plaintiff’s complaint. The plaintiff’s submission below was simply not dealt with. We do not know whether that submission was accepted or rejected. Certainly, there is no path let alone a clear path of reasoning provided by the Appeal Panel in relation to this topic or the plaintiff’s submission.

Resolution

128. The resolution to grounds 1—3 of this appeal can be separated into three topics.

A failure to engage with the plaintiff’s submissions.

129. After carefully reviewing the MAC and the Appeal Panel’s decision, I find that the Appeal Panel did engage with the plaintiff’s submissions in a meaningful way. The Appeal Panel has concluded that the MA’s assessment accords with the criteria in Class 2. The plaintiff refers to the appellant being able to maintain ‘good relationships with her partner, other family members and a few friends.’

130. The Appeal Panel’s conclusion adequately addresses the question of whether there was inconsistency between the history in the body of the MAC and the reasons given for awarding Class 2. The Appeal Panel concluded that the reasons given by the Medical Assessor for awarding class 2 ‘accords’ with the conclusion he arrived at. Just because the Appeal Panel made a finding that is not favourable to the plaintiff, it does not follow that the appellant’s submissions were not adequately engaged with.

A failure to provide proper reasons.

131. As stated above, the Appeal Panel confirmed that they could discern no error in the Class 2 rating awarded to the plaintiff and concluded that it was the best fit after reviewing the evidence that was available to the Medical Assessor. To delve further into the substance of the matters addressed by the Medical Assessor would be to conduct a merits review. While brief, the appeal panel has provided proper reasons for the affirmation of the Medical Assessor’s decision.

A failure to exercise statutory jurisdiction when reviewing the Medical Assessor’s assessment.

132. The primary reason for the Appeal Panel to find that Class 2 was the best fit was that the plaintiff still maintained ‘good relationships with her partner, other family members and a few friends’ (at [40]). The Appeal Panel has assessed the various criteria considered by the Medical Assessor and concluded that the Medical Assessor’s finding was appropriate. It was open for the Appeal Panel to make such a finding based on the important relationships that remain intact.

133. A summary of the plaintiff’s previous travels, estrangement from her brother and previous social life, separate from the quotation provided, does not amount to an error of law when read in the context of the criteria that was considered.

134. While the Appeal Panel’s reasons could have been more extensive, to expect the judicial review to be overturned on this basis would be to construe the decision with ‘an eye keenly attuned to the perception of error’: Wu Shan Liang at 291.

135. The Appeal Panel have not failed to exercise their statutory jurisdiction, nor missed essential matters in satisfactorily completing their task.

Approach to PIRS categories

136. In its decision, the Appeal Panel incorporated the Medical Assessor’s diagnosis and reasons for the finding. The Appeal Panel noted that the claimant’s appeal was based on the PIRS categories, ‘Social and recreational activities’ and ‘social functioning’.

137. The Appeal Panel referred to the Medical Assessor’s evaluation of the findings of the Independent Medical Experts (‘IME’) who assessed the plaintiff. Both Dr Chow, the doctor qualified on behalf of the plaintiff and Dr Young, the doctor qualified on behalf of the employer, initially diagnosed the claimant with a WPI of 4% and 1% respectively. Dr Chow re-examined the claimant two months later and noted a WPI of 17%.

138. The Appeal Panel concluded that based on the evidence concerning the claimant’s social functioning, which relates to the quality and quantity of her relationships, a change in her PIRS classification was not necessary. The Appeal Panel noted that the IME’s scored the plaintiff as falling within category one and three, whereas the Medical Assessor scored the plaintiff as falling within Class two. The Appeal Panel held that all three of these opinions were within a similar range and therefore the change requested by the plaintiff was not warranted.

139. In considering the plaintiff's application for judicial review, I am conscious that the plaintiff is not entitled to a review on the merits of his application before the medical assessor or the proper officer: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; (1986) 66 ALR 299 at [40]; Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 93 ALR 1 at [35]; and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 136 ALR 481 (“Wu Shan Liang”) at 272. It is not for this Court to make an assessment as to whether the plaintiff satisfied the criteria for a “Class 3” or “Class 2” impairment in any PIRS category.

The plaintiff’s submissions

140. Paragraph [30] of the Appeal Panel’s reasons stated that it could not interfere with the rating because opinions might differ as to the best fit in this category. It went on to say that “There must be error or assessment on the basis of incorrect criteria”. So, the correct approach is that the Appeal Panel must first ask itself whether it can discern error or the application of incorrect criteria.

141. At [35] of its reasons for decision, the Appeal Panel stated that it could not discern any error in the rating of a mild impairment. It then declared that Class 2 was the best fit and buttressed that declaration with its own reasoning. The Appeal Panel’s statutory task was to discern whether the Medical Assessor had committed any error or applied incorrect criteria and to address the specific complaints made by the plaintiff in its submissions.

140. The Appeal Panel misunderstood its task by impermissibly using its own opinion as to the correct Class rating to determine whether the Medical Assessor had committed error or applied the incorrect criteria. Using its own views to determine error is exactly what the Appeal Panel said it should not do but exactly what it did do.

141. The Appeal Panel repeated this legal error when it dealt with Social Functioning.

142. These fundamental errors are reason enough to quash the Appeal Panel’s decision and the PIC’s Certificate of Determination and to order that the Appeal be remitted to the PIC for redetermination according to law by a differently constituted Appeal Panel.

The employer’s submissions

145. The third alleged error concerns the way in which the Appeal Panel approached its assessment of the PIRS categories of social and recreational activities and social functioning, alleging:

1. That in relation to social and recreational activities, the Appeal Panel “impermissibly considered and applied its own view of the appropriate class for that PIRS category in order to reach its decision” (paragraph 7);

2. Similarly in relation to social functioning (paragraph 8);

3. That the “Appeal Panel failed to exercise statutory jurisdiction when reviewing the Medical Assessor’s PIRS assessment” of social and recreational activities (paragraph 8 – this error is worded identically to the error alleged in paragraph 3); and

4. Similarly in relation to social functioning (paragraph 9 – worded identically to the error alleged in paragraph 6).

146. As the plaintiff acknowledged at plaintiff’s submissions [59], the Appeal Panel had expressly recognised at [30] that its role was not to interfere with the Medical Assessor’s determination absent error (it also observed similarly at [20]).

147. The Appeal Panel appropriately confined itself to the questions raised before it on appeal. In order to determine whether there had been error in the Medical Assessor’s determination, it was necessary for the Appeal Panel to look at the material that had been before the Medical Assessor.

148. The Appeal Panel’s reasons must be considered in the context of the questions before it: Queanbeyan Racing Club Pty Ltd v Burton [2021] NSWCA 304, [41] per Basten JA; Lancaster at [45]; Mifsud v Pitador Excavations Pty Ltd t/as JD Concrete Pty Ltd [2022] NSWSC 1010; Kempe, [59] – [60]. This context, as above, required it to consider what had been before the Medical Assessor.

149. The employer submitted that no error as alleged occurred.

The plaintiff’s submissions in reply

150. Truly the plaintiff does not understand the employer’s response to the plaintiff’s grievance here.

151. In a nutshell, in deciding whether the Medical Assessor had made an error, the Appeal Panel was not supposed to take into account its own view of the merits, namely, whether a Class 2 or Class 3 ought to be awarded for a particular PIRS Category, but that is exactly what the Appeal Panel did do in relation to both Social and Recreational Activities and Social Functioning. This error by the Appeal Panel infected its reasoning process. What the Appeal Panel should have done was to carefully consider each submission put forward by the plaintiff and either accept or reject each submission. In doing so, the Appeal Panel was duty bound to provide a path of reasoning in support of either the acceptance or the rejection of each submission.

Resolution

152. Paragraph [35] of the Appeal Panel decision reads:

“The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is undertaking regular social activity without the need for a support person. Her social activities are not rarely undertaken but are regularly undertaken. Class 2 is the best fit and the Medical Assessor has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.”

153. While it is acknowledged that in paragraph [35] the Medical Panel is delving into the facts of the claimant’s Social and Recreational Activities and Social Functioning, this process was to determine whether there had been error in the Medical Assessor’s determination of the various PIRS categories.

154. The language employed in this paragraph could have been more directed towards discerning whether the Medical Assessor had committed any error. However, read in the context of the judgment as a whole, this paragraph only amounts to imprecise language, rather than evidence of the Appeal Panel’s lack of understanding of their statutory task.

155. At paragraph [30] of its reasons, the Appeal Panel demonstrated a firm understanding of the task they were prescribed to undertake:

“The Panel cannot interfere with the ratings ascribed by the Medical Assessor to the categories of Social and Recreational Activities and Social Functioning absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be error or assessment on the basis of incorrect criteria.”

156. Paragraph [35] read in the context of the reasons as a whole can be construed an engaging with the legal validity of the Medical Assessor’s reasons.

Conclusion

157. Grounds 11 and 12 of the plaintiff’s judicial review are successful. The Appeal Panel erred in misconstruing Clause 1.32 of the Guidelines and by denying the plaintiff procedural fairness. The plaintiff has succeeded in its judicial review of the certificate and reasons of the Appeal Panel dated 6 April 2023.

Costs

158. Costs are discretionary. Costs normally follow the event. Each party will bear their own costs.

THE COURT ORDERS THAT:

1. The certificate and reasons dated 6 April 2023 given by an Appeal Panel appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) are set aside pursuant to s 69 of the Supreme Court Act 1970 (NSW).

2. The certificate of determination dated 10 May 2023 issued by the Personal Injury Commission is set aside pursuant to s 69 of the Supreme Court Act 1970 (NSW).

3. The matter is remitted to the President of the Personal Injury Commission of New South Wales for redetermination according to law.

4. Each party will bear their own costs.

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Amendments

26 April 2024 - Last name only in citation.

26 April 2024 - Name amendment.

Decision last updated: 26 April 2024