Jenkins v Ambulance Service of New South Wales

[2015] NSWSC 633

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
Hearing dates:	30 April 2015
Date of orders:	26 June 2015
Decision date:	26 June 2015
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1)   Summons dismissed. (2)   Plaintiff to pay the first defendant’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – workers compensation – decision of Medical Appeal Panel – evaluation of permanent impairment – whether jurisdictional error – whether error of law – errors claimed not made out – mere disagreement about level of impairment not sufficient to demonstrate error susceptible to judicial review – no basis for judicial review – COSTS – application for certificate under Suitors Fund Act 1951 – certificate refused
Legislation Cited:	Suitors Fund Act 1951 Workplace Injury Management Workers Compensation Act 1998
Cases Cited:	Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 Crnobrnja v Motor Accidents Authority of NSW [2010] NSWSC 633
Category:	Principal judgment
Parties:	Christine Jenkins (P) Ambulance Service of New South Wales (D1) Medical Appeal Panel of the Workers Compensation Commission (D2) Registrar of the Workers Compensation Commission (D3)
Representation:	Counsel: M Robinson SC / H Somerville (P) K C Morgan (D1) Submitting (D2) Submitting (D3)   Solicitors: Bourke Love (P) Moray & Agnew (D1) Crown Solicitor’s Office (D2, D3)
File Number(s):	2014/343270

Judgment

1. Christine Frances Jenkins, as plaintiff, by a Summons filed 21 November 2014, claims orders by way of judicial review of a decision of the Medical Appeal Panel of the Workers Compensation Commission, the second defendant (“the Appeal Panel”).

2. The Summons joined three defendants. Two of the defendants, the Appeal Panel, and the Registrar of the Workers Compensation Commission (“the Registrar”), filed submitting appearances, and took no active part in the proceedings. The Ambulance Service of New South Wales (“the Ambulance Service”) is the only active defendant.

3. For the reasons which follow, I am of the opinion that Ms Jenkins’ Summons should be dismissed with costs.

Factual Background

4. Ms Jenkins commenced work with the Ambulance Service in 1990 as a paramedic.

5. She ceased work about 22 years later, on 14 March 2012. At that time, she was qualified as an intensive care paramedic, and was the Station Manager at Mullumbimby. She ceased work due to depression and anxiety. At the time she ceased work, she was 47 years old and married.

6. On 21 January 2014, she made application to the Workers Compensation Commission (“the Commission”) for referral for a medical assessment by an Approved Medical Specialist (“AMS”) of a matter which was in dispute, namely, her entitlement to lump sum compensation for her permanent impairment.

7. The application was referred to an AMS for an assessment of Ms Jenkins’ whole person impairment. On 2 May 2014, Dr Julian Parmegiani, who was a duly appointed AMS, issued a Medical Assessment Certificate (“the first Certificate”) in which he certified that Ms Jenkins suffered from a 6% whole person impairment. Accompanying that Certificate were six pages of reasons, and a completed table entitled “Table 11.8: PIRS Rating Form” (“PIRS Table”).

First Certificate and Reasons

8. It is apparent from his reasons, that the AMS undertook an assessment of Ms Jenkins in person on 30 April 2014, and also had access to a body of documents including reports from five psychiatrists and additional material from Ms Jenkins.

9. The AMS concluded that Ms Jenkins suffered from a chronic major depressive disorder, and an alcohol use disorder which was in partial remission. He concluded that her condition had stabilised, she had received appropriate psychiatric and psychological treatment including anti-depressant medication, and that he did not expect any change in her level of impairment over the next 12 months.

10. He also concluded that Ms Jenkins did not suffer a psychiatric disorder before she joined the Ambulance Service and, accordingly, the whole of her impairment was attributable to her employment, and none was attributable to any pre-existing injury, abnormality or condition.

11. In his reasons for assessment, the AMS said that he had made a diagnosis of Ms Jenkins in accordance with the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). He said that he had rated her whole person impairment using the “WorkCover Guides for the Evaluation of Permanent Impairment” (“WorkCover Guides”). He was required by the form that he completed, to explain his calculations. He noted that he explained the basis of his calculations in the PIRS Table specified by the WorkCover Guides. That table, as I have earlier indicated, was attached to his Certificate and reasons.

12. Prior to expressing his calculations and conclusions, the AMS had access to a report of Associate Professor Michael Robertson of 8 November 2013. Dr Robertson rated Ms Jenkins’ psychiatric impairment at 16%. The AMS indicated that he did not agree with the ratings which gave rise to that calculation.

13. The AMS also had a supplementary statement from Ms Jenkins in which she assessed her own psychiatric impairment using the PIRS Table. He noted what her assessment was, and noted that he did not agree with it in a number of respects.

14. The AMS set out his findings and reasons with respect to the PIRS Table. I reproduce a copy of the table completed by the AMS:

Table 11.8: P1RS Rating Form

Name	Christine Jenkins	Claim reference no.	TF2046501
D.O.B.	21 May 1964	Age at time of injury	47
Date of Injury	14 March 2012	Occupation before injury	Ambulance Officer
Date of assessment	30 April 2014	Marital status before injury	Married

Psychiatric diagnoses	Chronic Posttraumatic Stress Disorder with Secondary Major Depressive Disorder and Alcohol Use Disorder.
Psychiatric treatment	Appointments with Psychiatrist, Cymbalta 60mg per day.
Is impairment permanent?	Yes,

Self Care and Personal Hygiene	1	Ms Jenkins ate regular meals, and her weight was stable. She exercised five days per week, and she showered regularly. She looked after her appearance, and she was well-groomed on the day of assessment.
Social and Recreational Activities	2	Ms Jenkins saw a friend every few weeks. She spoke with friends by telephone on average every two weeks. She went to restaurants for lunch with her partner once per month, She went to cinemas on two occasions in 2014, She ran 6km per day and she swam 2km per day, five days per week.
Travel	2	Ms Jenkins was able to travel to local areas on her own. She went to shops and to medical appointments. She did not however travel to unfamiliar areas without a support person, because of excessive anxiety.
Social Functioning	2	Ms Jenkins emotional problems had an adverse impact on her relationship. She did not however experience domestic violence or separations. She entered her current relationship 10 years ago.
Concentration, Persistence and Pace	2	Ms Jenkins was able to read for up to 30 minutes. She used a computer for two hours, to read news headlines, and transfer money using online banking.
Employability	3	Ms Jenkins conducted some activities which could attract remuneration under different circumstances. She spent time gardening, doing housework, making small purchases and, looking after her two dogs and her chickens. She would however find it difficult to work fulltime, due to reduced energy and depressed mood.

Classes in Ascending Order:						Median Class
1	2	2	2	2	3	=2
Aggregate Score Impairment:							Total %
1+	2+	2+	2+	2+	3	12	=6%

Whole Person Impairment

6%

Application to Appeal to an Appeal Panel

15. On 22 May 2014, Ms Jenkins made an application to the Appeal Panel appealing against the decision of the AMS. Her application relied upon two grounds, namely that:

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

2. the Medical Assessment Certificate contained a demonstrable error.

16. The Registrar was satisfied in accordance with s 327(4) of the Workplace Injury Management Workers Compensation Act 1998 (“the 1998 Act”), that at least one of the grounds for appeal was made out and, accordingly, referred the appeal to an Appeal Panel.

The Appeal Panel Certificate and Reasons

17. The Appeal Panel convened pursuant to s 328 of the 1998 Act.

18. It determined that it was not necessary for Ms Jenkins to undergo a further medical examination, and it proceeded to determine the appeal on the basis of the documents which were before it. No complaint is made with respect to the decision of the Appeal Panel to proceed without an examination of the plaintiff, Ms Jenkins.

19. On 26 August 2014, the Appeal Panel determined that the first Certificate given by the AMS on 2 May 2014, ought be confirmed.

20. The 1998 Act entitles the Appeal Panel to confirm the Medical Assessment Certificate, or else revoke that Certificate and issue a new Certificate. In this case, the Appeal Panel determined to confirm the first Certificate. It set out the reasons for its decision in five pages.

21. The plaintiff’s Summons which, as I have said earlier, was filed on 21 November 2014, challenges the decision of the Appeal Panel, and asserts that there are a number of jurisdictional errors and/or errors of law on the face of the record which are sufficient to justify judicial review, and to found the relief claimed.

22. The decision of the Appeal Panel set out the background to the application for the appeal. It conducted a preliminary review in accordance with the WorkCover Guides, and then referred to the first Certificate in some detail.

23. In particular, the Appeal Panel set out in paragraph 15 of its reasons, the PIRS Table, which I have set out at [14] above.

24. The decision then shortly summarised the submissions of Ms Jenkins, and went on to pronounce its findings and reasons.

25. A number of paragraphs in these reasons are pointed to by Ms Jenkins’ submissions to this Court as being demonstrative of error. It is appropriate to set them out.

26. In paragraph 20 and following, the Appeal Panel said:

“20.   In the Panel’s view, having regard to the instruction contained in [11.13] of the Guides, the function of the descriptors provided within the several tables within [11.13] is not prescriptive but rather it is to provide examples to an AMS when considering how to rate a worker’s impairment. It is also clear from [1.13] of the Guides that an AMS must not slavishly apply the criteria of the Guides if to do so would be inconsistent with the AMS’ clinical judgment of a worker’s impairment.

…

22.   Having regard to these principles, it is the Panel’s view that the MAC does not contain a demonstrable error. It was not an error, in the Panel’s view, that the AMS did not address each of the descriptors in the several rating categories, bearing in mind that these descriptors merely provided examples for the AMS to consider. Further, in the absence of any indicator within the Guides as to what weight an AMS should give to each of the descriptors, it is not for the Panel to determine the appropriate weight the AMS should have given : … It is not readily apparent to the Panel that, based on the reasons the AMS provided for his classifications, the AMS’ classifications were wrong.

23.   It is the Panel’s view that the AMS has provided sufficient reasons for his classification that the appellant’s impairment in each of the rating areas that the appellant has challenged. The AMS has indicated within the body of the MAC why his classifications differ from the appellant’s self-classifications. Moreover, the appellant provided her view on this some five months before the AMS’ assessment. The AMS was required to assess the appellant’s impairment as it was at the time he assessed her. Similarly, Dr Robertson’s assessment was done some five months before the AMS’ assessment. The fact that the AMS had a different view of the appellant’s impairment than Dr Robertson, does not of itself demonstrate an error, rather it merely indicates a difference of views.

24.   It is not readily apparent to the Panel that the AMS made an error by inferring that the appellant had a capacity for some gainful employment from the fact that the appellant could do some household activity. That opinion was open to him. It does not matter that other persons might not draw the same conclusion.”

Summons

27. In her Summons, Ms Jenkins points to a number of errors. In respect to the Appeal Panel’s decision, Ms Jenkins pleads that:

1. the Appeal Panel misinterpreted and wrongly applied clause 1.13 and 11.7 of the WorkCover Guides;

2. the Appeal Panel wrongly interpreted and applied clause 11.13 of the WorkCover Guides resulting in an invalid decision;

3. the Appeal Panel wrongly interpreted and applied clause 11.13 of the WorkCover Guides in that it determined that it was not an error or a demonstrable error for the AMS to fail to address the published descriptors in the tables attached to clause 11.13; and

4. the Appeal Panel wrongly determined at paragraph 24 that it was open to the AMS to find that the plaintiff had capacity for gainful employment from the facts stated.

28. In order to understand the submissions of the plaintiff in this Court, it is necessary to set out the relevant provisions of the WorkCover Guides.

WorkCover Guides for the Evaluation of Permanent Impairment

29. This document is produced in accordance with s 376 of the 1998 Act. The effect of s 377(3) of the 1998 Act is to give the WorkCover Guides the status of delegated legislation.

30. The WorkCover Guides are divided into chapters, each of which is addressed to different bodily systems or bodily parts. Chapter 1 is a general introduction to the WorkCover Guides, and is applicable to the chapters which follow.

31. Clause 1.5(a) which comes within Chapter 1, provides:

“1.5 a)   Assessing permanent impairment involves clinical assessment on the day of assessment and determining:

…

●   the degree of permanent impairment that results from injury

…

in accordance with diagnostic and other objective criteria as detailed in the WorkCover Guides.”

32. Clause 1.13 of Chapter 1 of the WorkCover Guides is in the following form:

“The WorkCover Guides are meant to assist suitably qualified and experienced medical specialists to assess levels of permanent impairment. They are not meant to provide a ‘recipe approach’ to the assessment of permanent impairment. Medical specialists are required to exercise their clinical judgment in determining diagnosis, whether the original condition has resulted in an impairment and whether the impairment is permanent. The degree of permanent impairment that results from the injury must be determined using the tables, graphs and methodology given in the WorkCover Guides and AMA 5.”

33. Clause 1.15 makes it clear that where the relevant disorders are properly categorised as primary psychological and psychiatric injuries, as Ms Jenkins’ diagnosis was, then any permanent impairment due to that psychiatric disorder is to be determined in accordance with Chapter 11 of the WorkCover Guides.

34. The plaintiff’s submissions call attention to the following clauses of Chapter 11 of the WorkCover Guides:

“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.

…

11.7   It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and probable duration of the impairment, but it is not the sole criteria to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations; from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals, results of standardised tests, including appropriate psychometric testing performed by a qualified clinical psychologist, and work evaluations, may provide useful information to assist with the assessment. Evaluation of the impairment will need to take into account variations to the level of functioning over time. Percentage impairment refers to ‘whole person impairment’.

…”

35. Chapter 11 then moves to deal with Psychiatric Impairment Rating Scales (“PIRS”). Clause 11.12 requires the Assessor to address the behavioural consequences of a psychiatric disorder by reference to six items, each of which evaluates an area of functional impairment. Those areas of functional impairment are:

●   Self care and personal hygiene (Table 11.1).

●   Social and recreational activities (Table 11.2)

●   Travel (Table 11.3)

●   Social functioning (relationships) (Table 11.4)

●   Concentration (Table 11.5)

●   Employability (Table 11.6)

36. Clause 11.13 occupies a central role in the plaintiff’s argument. There are six tables attached to clause 11.13 addressing the identified areas of functional impairment. Four of those tables are specifically addressed by the plaintiff’s submissions.

37. Clause 11.13 is as follows, omitting the tables:

“11.13   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.”

38. It will be sufficient for the purposes of understanding the submissions of Ms Jenkins to set out one of the tables. Table 11.1: Psychiatric Impairment Rating Scale – Self Care and Personal Hygiene is a convenient table to set out. It is in the following form:

Table 11.1 Psychiatric impairment rating scale – Self Care and Personal Hygiene

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population
Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3	Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.
Class 4	Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5	Totally impaired: Needs assistance with basic functions, such as feeding and toileting.

39. The other Tables follow a similar format – in each case Class 1 refers to “No deficit or minor defect …”, and the classes progress in the same way until Class 5 which in each Table describes a person who is “Totally impaired” for that functional area. Different examples, relevant to the functional area are given.

Plaintiff’s Submissions

40. The first three grounds of the Summons rely upon an error to which the plaintiff draws attention in paragraph 20 and following of the Appeal Panel’s decision. The plaintiff submitted that in paragraph 20 of the decision, when the Appeal Panel determined that it was “clear” from clause 1.13 of the WorkCover Guides, that an AMS “must not slavishly apply the criteria of the Guides if to do so would be inconsistent with the AMS’ clinical judgment of a worker’s impairment”, the Appeal Panel was misinterpreting clause 1.13 and fell into error. The plaintiff additionally submitted that in paragraph 20, it was erroneous for the Appeal Panel to describe the tables published in clause 11.13 as being “not prescriptive”, whereas, in truth, upon the proper construction of the WorkCover Guides, the tables are prescriptive.

40. The plaintiff submitted that the AMS fell into error by failing to address all of the published descriptors in the tables attached to clause 11.13 of the WorkCover Guides, and it was an error of the Appeal Panel to fail to detect that error, and overturn the first Certificate.

41. The plaintiff put an alternative submission that the Court should hold that the examples of activities used in the tables attached to clause 11.13 of the WorkCover Guides constituted “… a statutory minimum as to the class descriptors that may considered and determined by the AMS or panel” when a determination of the extent of functional impairment was being made.

42. In summary, what the plaintiff was submitting with respect to this error, was that the Appeal Panel was effectively holding that the class descriptors were optional, and they did not need to be individually considered and applied.

43. The plaintiff drew attention, by way of broad analogy, to a decision of this Court with respect to the Motor Accident Authority Scheme in Crnobrnja v Motor Accidents Authority of NSW [2010] NSWSC 633.

44. With respect to the fourth ground of appeal, the plaintiff submitted that the Appeal Panel wrongly determined at paragraph 24, that it was open to the AMS to find that the plaintiff had capacity for gainful employment from the fact that the plaintiff “… could undertake some gardening and a few household activities and [look] after her two dogs and chickens”. The plaintiff submits that such a conclusion was not reasonably open on the material before the Appeal Panel (and the AMS).

Defendant’s Submissions

46. The active defendant, the Ambulance Service, supported the Appeal Panel’s decision, submitting that it was correct. In its written submissions, the Ambulance Service contended that it was obvious from the reasons of the AMS, which included allocating scores with respect to each functional area, on PIRS Table (which has been set out above), that the AMS went through the PIRS functional areas and allocated a class from the tables and thus complied with the mandatory obligation in clause 1.13 of the WorkCover Guides, namely to use the tables, graphs and methodology set out in the WorkCover Guides. The Ambulance Service submitted that there could be no greater demonstration of the fact that the AMS did so than the appearance of that in the reasons attached to the first Certificate. The Appeal Panel concluded that the AMS had provided sufficient reasons for each of the ratings.

47. The Ambulance Service submitted that although the plaintiff was here challenging those ratings, this was really being done as an attempt to have a “merits review” in the guise of a judicial review. The Ambulance Service submitted that the Court would not permit such an exercise.

48. The Ambulance Service further submitted that given that clause 11.13 of the WorkCover Guides specifically proffered examples of activities, it was not clear that the Appeal Panel had erred at all. The Ambulance Service submitted that the phrase “class descriptors” was apt, in the context of clause 11.13, to refer to the initial words in each class in each table. By way of an example, the Ambulance Service pointed in Table 11.1 to the fact that each class commenced with a description of the level of impairment which fell within that class. Those descriptions were as follows:

●   Class 1 – no deficit, or minor deficit attributable to the normal variation in the general population;

●   Class 2 – mild impairment;

●   Class 3 – moderate impairment;

●   Class 4 – severe impairment;

●   Class 5 – totally impaired.

49. The Ambulance Service submitted that these are the words which properly fall within the phrase “class descriptors” which rate impairment according to severity. The nomination in the PIRS Table of a figure with respect to each functional area of activity was sufficient to indicate that the AMS, and the Appeal Panel, had adequately addressed each of these class descriptors, and had reached a conclusion in respect of them. The Ambulance Service submitted that the balance of the material in each of the Tables constituted nothing more than examples of activities, or disabilities which might support the particular class descriptor.

50. The Ambulance Service gave as an example in its submissions, that in Class 2 of Table 11.1 the phrase “sometimes misses a meal or relies on takeaway food” was an example only of an activity or an incident in the life of a claimant, which would indicate that they may be mildly impaired as a consequence of a psychiatric or psychological diagnosis.

51. Finally, the Ambulance Service submitted that the conclusion as to employability set out in paragraph 24 of the Appeal Panel’s judgment was open and therefore correct.

Discernment

52. Chapter 1 of the WorkCover Guides is a general description to those in the position of an AMS as to how to apply the Guides. Of particular importance in clause 1.5(a) is the statement which notes that assessing permanent impairment involves clinical assessment on the day of assessment.

53. A clinical assessment of a claimant is one, but not the only, method of accumulating information about a claimant. Clearly, other medical reports about the claimant’s condition, histories obtained from independent observers such as members of the claimant’s family, and histories obtained from the claimant themselves, either in the past, as contained in medical reports, or in the process of a consultation, are all matters which are legitimately able to be taken into account.

54. Clause 1.13 of the WorkCover Guides cannot reasonably be read in the way contended for by the plaintiff. A reasonable reading of that clause underlines the usual process engaged in by a medical expert when assessing the presenting condition, the diagnosis, and the severity of the condition which is being presented. Clause 1.13 requires medical specialists to exercise their clinical judgment. Whilst it is correct to say that the words in the following sentence in clause 1.13 require the medical expert to determine a degree of permanent impairment “… using the tables, graphs and methodology given …”, that does not mean that clinical judgment or assessment has no role to play in that process of determination of the degree of permanent impairment.

55. Particularly with the assessment of psychiatric or psychological impairment, so much, in my view, is self-evident. There is no objective method by which the extent of a psychiatric impairment can be measured, unlike the objective measurement of a restriction on a degree of movement in an upper limb, by way of example, or an objective, and measurable, assessment of the extent of loss of hearing or eyesight.

56. In assessing the extent of a psychiatric impairment, the WorkCover Guides require the AMS to determine from all of the material at their disposal, whether, in respect of each functional area, the degree of impairment fits into one of the classes which range from no impairment to total impairment.

57. The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.

58. There are a number of reasons for this. First, the submission pays no heed to the importance, to which I have referred, of clinical assessment and judgment, both of which are required in formulating an opinion.

59. Secondly, as clause 11.7 of the WorkCover Guides records, there is an expectation that the psychiatrist will provide a rationale for the rating which is assigned. That rating is said to be: “… based on the injured worker’s psychiatric symptoms”.

60. But the activities (or perhaps lack of them) listed in the various tables go beyond symptoms. Those examples attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described.

61. Next, the submission pays insufficient attention to the words in clause 11.13 of the WorkCover Guides. The words require the AMS to use the standard form when scoring the PIRS. It specifically then provides that the examples of activities are “examples only”. It then enjoins the AMS to take account of a person’s cultural background and to consider the individual’s activities that are usual “… for the person’s age, sex and cultural norms”.

62. None of the specific examples reflect age differences. None of the specific examples necessarily reflect gender differences or cultural norms. On the contrary, the examples are generic and general in their description. They are not particularly specific. For example, in Class 2 in Table 11.1 of the PIRS, one example which is given is that the person may look unkempt occasionally. One can readily imagine that looking unkempt would be a matter which would vary where one was considering the activities and behaviour of a person in their late teenage years when compared with a person who was much older. What is unkempt in those circumstances would, itself, vary.

63. Equally, the boundaries between the classes are not of themselves bright line boundaries.

64. In my opinion, it is to misread the WorkCover Guides to require, as the plaintiff’s submissions would, that the AMS can only proceed either by using the examples in the tables solely as the basis for a rating, or as the minimum basis for a rating.

65. I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.

66. It follows from this conclusion that the criticised statement of the Appeal Panel in paragraph 20 of its decision is not erroneous.

67. The decision of Crnobrnja does not stand contrary to this interpretation of the WorkCover Guides. The decision concerned different guidelines for the evaluation of permanent impairment. As is obvious from reading those guidelines, and comparing them to the WorkCover Guides, the way in which the guidelines are described are entirely different, some of the contents of the guidelines are capable of being determined by objective and measurable examination. As well, the proper interpretation of those guidelines required the absence of particular identifiable objective features. There may well be, and no doubt is, a difference in the degree to which objective observation of movement or restriction on movement is assessable with respect to whole person impairment for physical disability. However, there is no general principle to be derived from Crnobrnja that is applicable either to the WorkCover Guides or to an assessment of psychiatric impairment. The case is of no assistance in the determination of the issues posed for consideration here.

68. It is necessary to consider the fourth ground of appeal, namely, that it was not open to the AMS to find that the plaintiff had capacity for gainful employment from the plaintiff’s ability to undertake gardening, a few household activities, and care for her pets and domestic animals. It was contended that such a conclusion was not open to the AMS and that, accordingly, the Appeal Panel was in error in finding that it was open.

69. It is necessary to refer to the entirety of the remarks about employability, which led the AMS to conclude that there was a moderate impairment of the plaintiff’s employability. What was said was this:

“Ms Jenkins conducted some activities which could attract remuneration under different circumstances. She spent time gardening, doing housework, making small purchases and looking after her two dogs and her chickens. She would however find it difficult to work fulltime, due to reduced energy and depressed mood.”

70. It is clear that the AMS regarded the plaintiff’s capacity to spend time gardening, as indicating that she had some capacity for remunerative work. It would be open to conclude that that physical capacity could be exercised in undertaking remunerated gardening, or garden maintenance or activities of a similar kind. The fact that the plaintiff could undertake housework, apparently satisfactorily, would indicate that it was open to the AMS to conclude that she could engage in some remunerative employment undertaking housework.

71. Caring for pets, which the plaintiff was able to do, would also indicate that she may be able to engage in some remunerative employment caring for pets owned by others. She could perhaps be paid to walk dogs in her own neighbourhood, if such employment was available. The AMS was not called upon to decide an impairment level having regard to whether employment was in fact available. He was determining only impairment of capacity for work.

72. In order to succeed on this ground of appeal, it is necessary to show that the Appeal Panel erred because they could not conclude that the rating imposed by the AMS was open to him. The examples which I have just given, derived directly from the comments of the AMS, indicate that it was open to him to come to the conclusion which he did, and that the Appeal Panel was not in error when it so concluded.

73. It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.

Conclusion

74. I am wholly unpersuaded that the errors claimed in the decision of the Appeal Panel have been made out. In my view there is no basis for a judicial review of the kind sought in the Summons and the Summons must be dismissed.

Costs

75. Ordinarily, costs would follow the event and the plaintiff would be required to pay the costs of the active defendant, here the Ambulance Service.

76. I see no reason why that order should not be made.

77. Against the contingency that the plaintiff may be ordered to pay the costs of the Ambulance Service, the plaintiff submitted that I should order a certificate under the Suitors Fund Act 1951.

78. The plaintiff submitted that under s 6C(2) of the Suitors Fund Act, the Court had power to issue to an unsuccessful individual litigant, a certificate under that Act, including in judicial review cases.

79. The plaintiff submitted that the Medical Appeal Panel of the Workers Compensation Commission should be regarded as a “court” within the definition of that word in s 2(1) of the Suitors Fund Act. I accept that courts have consistently given a beneficial interpretation to the Suitors Fund Act, and that the word “court” should be given a liberal and beneficial construction to accord with the purpose and policy of the Act: Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 516 per McHugh JA.

80. However, the circumstances here do not fall within ss 6, 6A and 6B of the Suitors Fund Act. They are the only sections which authorise a court to issue a certificate under that Act.

81. The terms of s 6C, which are relied upon by the plaintiff to support the issuing of a certificate, relate only to the exercise of the discretion of the Director-General of the Attorney General’s Department. As well, that section does not authorise the issue by this Court of any certificate.

82. I am unpersuaded that the Court can, or should, issue a certificate under the Suitors Fund Act with respect to these proceedings.

Orders

83. I make the following orders:

1. Summons dismissed.

2. Plaintiff to pay the first defendant’s costs.

**********

Decision last updated: 07 July 2015