Parker v Select Civil Pty Ltd

[2018] NSWSC 140

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140

Hearing dates:

27 September 2017

Date of orders:

21 February 2018

Decision date:

21 February 2018

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The Appeal Panel’s medical assessment certificate and statement of reasons dated 18 April 2017 is set aside.

 

(2) The matter is remitted to the Workers Compensation Commission to be determined according to law.

 (3) The defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW - judicial review – decision of Medical Appeal Panel – evaluation of permanent impairment – Appeal Panel revoked a “medical assessment certificate” and issued a new certificate - whether Appeal Panel substituted their own view without identifying a real error – Medical Appeal Panel failed to establish an error

Legislation Cited:

NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management & Workers Compensation Act 1998 (NSW)

Cases Cited:

Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Campbelltown City Council v Vegan [2004] NSWSC 1129
Ferguson v State of New South Wales & Ors [2017] NSWSC 887
Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194
Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
McGinn v Ashfield Council [2012] NSWCA 238
Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
NSW Police Force v Daniel Wark [2012] NSWWCCMA 36
Sanhueza v AAMI Limited [2010] NSWSC 774
Versace v Australia Best Tyres Auto Pty Ltd [2016] NSWSC 1540
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 40; [2013] HCA 43; 88 ALJR 52

Category:

Principal judgment

Parties:

Glen William Parker (Plaintiff)
Select Civil Pty Limited (First Defendant)
Workers Compensation Commission of New South Wales (Second Defendant)
The Medical Appeal Panel of the Workers Compensation Commission of New South Wales by Jane Peacock, Dr Julian Parmegiani and Dr Robert Gertler

Representation:

Counsel:
MJ Perry (Plaintiff)
PD Herzfeld with MT Sherman (First Defendant)

  Solicitors:
Gorman Jones Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)
Submitting Appearances (Second and Third Defendants)

File Number(s):

2017/42928

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review from a decision of the Medical Appeal Panel of the Workers Compensation Commission.

2. The plaintiff is Glenn William Parker. The first defendant is Select Civil Pty Limited (“Select Civil”). The second defendant is the Workers Compensation Commission of New South Wales. The third defendant is the Medical Appeal Panel of the Workers Compensation Commission of New South Wales comprised of Jane Peacock, Drs Julian Parmegiani and Robert Gertler (“the Appeal Panel”). Both the second and third defendants have filed submitting appearances.

3. The plaintiff relied upon the affidavit of Michael Dean Jones filed 13 July 2017. Mr Parker and Select Civil also relied upon the court book filed 19 September 2017.

4. By amended summons filed 7 September 2017, Mr Parker seeks firstly, an order in the nature of certiorari or, alternatively a declaration, setting aside or declaring invalid the whole of the decision of the third defendant purportedly made under the Workplace Injury Management & Workers Compensation Act 1998 (NSW) dated 18 April 2017 (“the decision”); and secondly, an order in the nature of mandamus remitting the matter to the second defendant for the purpose of constituting a differently constituted medical appeal panel to determine the matter according to law.

Background

5. On 10 April 2014, the plaintiff suffered psychological injury in the course of his employment with Select Civil. He was sitting in and operating a long reach excavator on or near the bank of a river. The river bank gave way behind him causing the excavator to sink into the river. The cabin began to fill with water and he thought he would die. Fortuitously, he noticed a hammer, smashed the windscreen, untangled himself from cables, and swam out onto the rocks (Aff, Jones 13/7/2017, 216). Select Civil accepted liability to pay compensation to the plaintiff under the Workers Compensation Act 1987 (NSW).

6. One of the plaintiff’s Workers Compensation Act entitlements is for a lump sum in respect of a whole person impairment (“WPI”) pursuant to s 66 of the Workers Compensation Act. There is a dispute between the parties as to the level of WPI. On 11 April 2016, the plaintiff lodged an application to resolve a dispute in the Workers Compensation Commission. That led to him being assessed by an approved medical specialist (“AMS”) under s 325 of the Workplace Injury Management & Workers Compensation Act. On 12 October 2016, the AMS issued a medical assessment certificate (“MAC”) assessing the plaintiff as having a 22% WPI. (Aff, Jones 13/7/2017, 215-225).

7. Select Civil appealed against the decision of the AMS pursuant to s 327 Workplace Injury Management & Workers Compensation Act. On 18 April 2017, the Appeal Panel determined that it would revoke the MAC and issue a new certificate pursuant to s 328(5) the Workplace Injury Management & Workers Compensation Act determining that the plaintiff carried a 9% WPI (Aff, Jones 13/7/2017, 244-252). It is the decision of the Appeal Panel that forms the basis of this judicial review.

8. It should be noted that no s 66 compensation is payable in respect of psychological injury unless the degree of WPI is at least 15%: s 65A(3) Workers Compensation Act.

The Statutory Scheme

9. I shall briefly outline the relevant provisions of the Workplace Injury Management & Workers Compensation Act here.

10. Chapter 7, Part 7 of the Workplace Injury Management & Workers Compensation Act provides for medical assessment, including the assessment of the degree of WPI, by an AMS and, by way of review, appeal panels. The scheme was designed to take the function of assessment of injury out of the adversary court system: see Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [1] per Basten JA.

11. Approved medical specialists are appointed under s 321 of the Workplace Injury Management & Workers Compensation Act to deal with medical disputes, which are in s 319 defined to mean:

“a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:

(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker’s fitness for employment,

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

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(e) …,

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”

12. Section 322(1) reads:

“322(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with the Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”

13. Appeals against medical assessments are governed by ss 327 and 328 of the Workplace Injury Management & Workers Compensation Act.

14. Section 327(3) relevantly reads:

“327(3) The grounds for appeal under this section are any of the following grounds:

…

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

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

And s 328 of the Workplace Injury Management & Workers Compensation Act relevantly reads:

“328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

(2) The appeal is to be by way of review of the original medical assessment. The Workers Compensation Guidelines can provide for the procedure on an appeal.

…

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

…”

15. Section 328(2) confines the grounds of appeal which an Appeal Panel may consider, to those pursued by the appellant. Here the Appeal Panel is confined to whether the assessment was made on the basis of incorrect criteria or there is a demonstrable error.

16. Section 331 of the Workplace Injury Management & Workers Compensation Act required the Appeal Panel to apply the Guidelines in conducting its review. Section 331 reads:

“331 Guidelines

Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.”

The Guidelines

17. The parties referred to a number of relevant provisions in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016) (“the Guidelines”).

18. The AMS was obliged to undertake his assessment of Mr Parker in accordance with clauses 1.6 and 11.6, 11.11 and 11.12 of the Guidelines. Clause 1.6 provides that:

“a) Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…

b) Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”

And Clause 11.6 provides:

“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 possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning 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 impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to “whole person impairment”.”

Clause 11.11 provides:

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

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, persistence and pace (Table 11.5)

Employability (Table 11.6).

Clause 11.12 provides:

“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.”

Psychiatric Impairment Rating Scale (PIRS)

19. So far as the PIRS rating scale is concerned, in Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (“Ferguson”), Campbell J explained 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.”

20. Table 11.1 sets out relevant class descriptors for “Self Care and Personal Hygiene”. Classes 1 and 2 are as follows:

“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.”

The decision of the AMS dated 30 September 2016

21. The matter was referred to AMS Dr Ash Takyar, psychiatrist. On 12 October 2016, the AMS provided written reasons and assessed Mr Parker as PIRS Class 3 for the category self care and personal hygiene.

22. On 30 September 2016, the AMS took a brief history relating to the injury, detailed Mr Parker’s present symptoms and treatment, general health, social activities, set out his findings on mental state examination, provided a summary of his injuries and diagnoses and finally summarised the medical reports and psychological assessment report where the AMS noted Mr Parker had undergone 43 sessions of psychological treatment. The AMS at recorded his findings on the mental state examination as follows at [5]:

“Mr Glenn William Parker presented as a 61-year old male of a large build and average height, who had red eyes and was casually dressed. He appeared distressed through much of the review, spoke with long pauses at times and had difficulty remembering things. There was some mild psychomotor slowing evidence. His eye contact was reduced and he sat in a somewhat slumped posture and did not move much. His mood was low and his affect was anxious and occasionally teary in equality and restricted in range. His speech was soft and of normal volume. His thought form was unremarkable. He described re-experiencing phenomena, hyperarousal symptoms, hypervigiliance and avoidance phenomena. He described panic attacks with frequent worry about panic attacks. He described depressive symptoms. He denied suicidality. He presented with concentration and memory difficulties. His insight and judgement were intact.”

23. I have not set out the AMS findings in relation to social activities/ADLs here as they appear in the Appeal Panel’s decision at [23] reproduced later in this judgment.

24. In assessing Class 3 for self care and personal hygiene, the AMS stated at page 10:

“He does not shower regularly, generally four times per week without prompting and misses meals frequently. He only prepares his own meals twice per week and generally does not. He would need prompting to maintain a minimal level of nutrition and hygiene.”

25. The AMS also commented that the history that Mr Parker related to him was consistent with his mental state and general presentation. As previously stated, the AMS issued a MAC assessing Mr Parker as having a 22% WPI. The WPI was calculated with a median class of 3 and an aggregate of 18 is 22% WPI.

Select Civil’s submissions to the Registrar and Appeal Panel

26. While Select Civil submitted that there had been a misapplication of the assessment criteria under the PIRS rating scale for both “Self Care and Personal Hygiene” and “Concentration, Persistence and Pace” categories, the Appeal Panel did not discern any error in the AMS’s assessment of Class 4 for Concentration, Persistence and Pace, so it plays no part of this judicial review.

27. At paragraphs 3.6 to 3.11 Select Civil submitted:

“Incorrect criteria - misapplication of assessment criteria under Psychiatric impairment rating scale for self-care and hygiene.

3.6. The MAC states that for self-care and personal Hygiene, the respondent was assessed at Class 3 Impairment The AMS recorded at page 3 of the MAC.

He [the respondent] told me that he generally showers unprompted four times per week. He lives by himself in a boatshed and has done so for three years. He generally cooks twice per week but otherwise consumes takeaway food. He shops for groceries “as needed” on a fortnightly basis, He is able to attend the Coles supermarket in Toronto but generally goes after the peak. He said that this was usually after 6:00 pm. He tries to keep up with household chores and his landlord will often prompt him if the home becomes too messy.

3.7 When explaining the assessment of Class 3 Impairment at page 10 of the MAC, the MAC wrote that respondent “does not shower regularly, generally four times per week without prompting and misses meals frequently, He only prepares his own meals twice per week and generally does not. He would need prompting to maintain a minimal level of nutrition and hygiene”.

3.8 The appellant submits that when the clinical history is considered against the AMS’ assessment under PIRS there is no apparent suggestion that the respondent is missing meals or is being prompted to maintain nutrition and hygiene. The appellant submits that the respondent appears to eat regularly and is managing to look after himself.

3.9. The appellant submits that the AMS’ clinical findings do not support that the respondent, as the example at Class 3 impairment of Table 11.1

“Can’t live independently without regular support. Needs prompting to shower daily end 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.”

3.10 It is the appellant’s submission that the AMS has failed to apply his recorded clinical findings to an Impairment class consistent with the findings. The appellant says that the respondent's responses are Consistent with Class 2 impairment, where the example provided at Table 11.1 states that the individual Is able to live independently, looks after self adequately although may look unkempt occasionally, sometimes misses a meal or relies on takeaway food.

3.11 The appellant acknowledges that the examples are “examples only” as part 11.12 states, however submits the AMS has failed to apply his clinical findings to consistent criteria In the PIRS as would reflect the respondent’s level of functioning. This failure has caused a demonstrable error on the face of the MAC.”

28. It seems that Select Civil is relying on two grounds of appeal as incorrect criteria referred to in the heading and demonstrable error which is referred to in the last sentence of the submissions.

Mr Parker’s submissions to the Registrar and Appeal Panel

29. Mr Parker contended that there was an abundance of evidence to suggest that his impairment for self care and personal hygiene should be assessed at Class 3. For example, evidence suggested that he often skipped meals, eating only one meal per day. Prior to his accident he had cooked all the time. Since the accident he now only cooks twice per week. As a part of his treatment regime he was also encouraged to perform two to three activities per day. However, his energy levels were minimal, rated at 10-25% of baseline.

30. Further, Mr Parker submitted that he had tried to keep up with household chores because he lives alone and has no wife or children to support or look after him. Nevertheless, he required prompting from his landlord when the house became messy. He also needed to be prompted to clean the rental property at a minimal level in order to have a place to live.

31. Finally, Mr Parker submitted that he relied on assistance from his older brother, who has helped Mr Parker to set up direct debits for most of his bills. His brother also drove him to medical consultations.

The Registrar’s decision

32. Select Civil claimed that the medical assessment by the AMS should be reviewed on two grounds. They are that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) or the MAC contains a demonstrable error (s 327(3)(d)). The Registrar was satisfied that at least one of the grounds of appeal was made out in accordance with s 327(4) of the Workplace Injury Management & Workers Compensation Act and referred the appeal to the Appeal Panel for review of the AMS assessment.

Incorrect criteria and demonstrable error

33. In terms of what is to be determined as “incorrect criteria”  the Minister for Police, who moved the second reading of the Bill (NSW Legislative Assembly, Hansard, 19 June 2001, p 14772) indicated that:

“It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied”.

34. In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL adopted the above passage. At [59] his Honour stated:

“Although the highlighted passage is somewhat oblique, it tends to suggest that the “criteria” upon which assessment is to be based are to be found in any relevant guides, including guides issued by Workcover which have been issued for the assessment of impairment and that appeal lies where they have been incorrectly applied.”

35. As to what is meant by “demonstrable error” has been discussed in cases such as Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, where Hoeben J said at [39]:

“39 I do not propose to, nor is it necessary, that I define what is “demonstrable error” for the purposes of s327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that “demonstrable error” is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment.”

The decision of the Appeal Panel dated 18 April 2017

36. The Appeal Panel was comprised of Jane Peacock, arbitrator and Drs Julian Parmegiana and Robert Gertler both psychiatrists. The Appeal Panel conducted a preliminary review. Neither party had requested that the Appeal Panel examine Mr Parker and agreed that the appeal be determined without an assessment hearing. ([7]-[8]).

37. At this preliminary review, the Appeal Panel determined that it was not necessary for Mr Parker to undergo a further medical examination as there was sufficient evidence before it to make a determination. The Appeal Panel acknowledged that it had before it all documents that were sent to the AMS for the original assessment and it had taken them into account in making its determination. (at [9]).

38. The Appeal Panel in its reasons for decision dated 24 April 2017 at [18]-[27] stated:

“18. In summary, the appellant complained on appeal about the AMS’s assessments under the Psychiatric Impairment Rating Scale (PIRS) in respect … self care and personal hygiene … . The appellant submitted that the AMS misapplied the assessment criteria under the PIRS scale …

19. The Respondent submitted that the MAC should be confirmed. In summary, the respondent submitted that the history taken by the AMS and the available evidence support the assessment of Class 3 for self care and personal hygiene. …

20. In respect to self care and personal hygiene, the AMS assessed a moderate impairment at Class 3. The AMS stated:

“He does not shower regularly, generally four times per week without prompting and misses meals frequently. He only prepares his own meals twice per week and generally does not. He would need prompting to maintain a minimal level of nutrition and hygiene.”

21. The appellant complains that the worker's impairment should have been rated as mild at Class 2.

22. The relevant descriptors [under PIRS] are as follows:

Class 2	Mild impairment: able to live independently; look after self adequately, although may look unkempt occasionally, sometimes misses a meal or relies on takeaway 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 hygiene and nutrition

23. The AMS took a history of Social activities/ADLS which he recorded as follows:

“He told me that he generally showers four times per week. He lives by himself in a boatshed and has done so for three years. He generally cooks twice per week but otherwise consumes takeaway food. He shops for groceries “as needed” on a fortnightly basis. He is able to attend the Coles supermarket in Toronto but generally goes after the peak. He said that this was usually after 6:00 pm. He tries to keep up with household chores and his landlord will often prompt him if the house becomes too messy. He drives only within the local area and to appointments. He told me that he had lost friends over time and had three remaining friends. He said that he generally sees them “not very often”, roughly once per month or less. He said that his friends initiate interactions. He has no children. He is not in a relationship now, but was in one at the time of the accident and he said this ended around Christmas 2014, in the context of strain on his relationship. His parents are deceased, as is one brother.

He sees his surviving older brother once every 4-6 weeks and his two stepbrothers are in contact with him occasionally. He avoids public transport. His sole hobby is stand-up paddle-boarding which he does once per week. He does this alone. He told me that he lives on a houseboat and therefore was able to start this from his house boat. He spends an hour doing this roughly.”

24. This history is consistent with the available evidence.

25. The AMS assessed a moderate impairment, however, the history taken and the available evidence are consistent with criteria for rating a mild impairment at Class 2 because the worker is primarily able to live independently.

26. This is also consistent with the rating of a mild impairment in this Class given by the worker’s own medico-legal expert Dr Canaris, Dr Canaris in a report dated 29 January 2016 assessed Class 2 Mild Impairment based on the following history:

“He changes his clothes daily ‘but I did go through a period when it wasn’t that important – I’m trying to get on top of that now’. He showers most days. He finds that some days he “couldn’t be bothered” cooking and gets takeaways whereas before I used to cook all the time. His house is now tidier than before but still rather messy.”

27. The Panel considers that the AMS has erred in assessing Class 3 because on the proper application of the criteria an assessment of Class 2- mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.”

39. The Appeal Panel revoked the MAC issued by the AMS and issued a new MAC assessing the plaintiff as having a 9% WPI.

Grounds of Judicial Review

40. There are numerous and overlapping grounds of appeal. The main grounds of judicial review can be summarised as follows:

1. The Appeal Panel conducted their own review of material and substituted their own opinion for that of the AMS without identifying a real error or without conducting their own clinical assessment or examination of Mr Parker. (failure to identify error). (Ground 6)

2. The Appeal Panel failed to provide no or no adequate reasons including failing to have regard for key principles which were relevant to its conclusion. (failure to provide adequate reasons). (Grounds 6A, 7, 8 and 9).

3. The Appeal Panel erred in applying the criteria under the guidelines, by taking into account only selective aspects of the history. (failure to have regard to relevant considerations, Wednesbury unreasonableness and jurisdictional errors). (Grounds 9, 10 and 11).

41. I adopt the approach that I should read the Appeal Panel’s reasons for decision as a whole and should not read its reasons with an eye finely tuned for 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] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 291). As to what constitutes sufficient reasons of a Tribunal member (and Appeal Panel) is set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 40; [2013] HCA 43; 88 ALJR 52 at [47], 55]-56].

Failure to identify an error (Ground 6)

42. The first ground of review is that the Appeal Panel conducted their own review of material and substituted their own opinion for that of the AMS without identifying a real error or without conducting their own clinical assessment or examination of Mr Parker.

Submissions on failure to identify error

43. Mr Parker referred to Versace v Australia Best Tyres Auto Pty Ltd [2016] NSWSC 1540, per Schmidt J (“Versace”). which involved the application of the PIRS category of concentration, persistence and pace. In Versace Schmidt J stated at [39], [63], [65], [84] and [85]:

39 It follows that because that the Panel did not receive new evidence, its role on this appeal were not those of a medical specialist under s 324(1), but rather to deal with and correct alleged error raised by the appeal. In undertaking that task it could not simply substitute its own view for that of the medical specialist, absent a finding of error of the kind alleged on the appeal.

…

63 The error in the Panel’s approach is revealed by what it said at [24], as to the course it had pursued on the appeal, namely, that it had “conducted a review of the material before it and reached its own conclusion concerning the correct assessment of the impairments and losses suffered by the Respondent worker.” In pursuing that approach the Panel erred.

…

65 The possibility of differing clinical judgments being available on the day of the assessment in relation to the “concentration, persistence and pace” category, was not alluded to by the Panel in its reasons. Given the nature of what was being assessed in respect of that category, that possibility was also obviously present. After all, the medical specialist’s conclusions rested not only on written reports of other medical practitioners and medical records to which he referred, but also on the results of the cognitive testing he had administered and his own clinical examination of Mr Versace that day, as the Guides required. That was all part of the medical evidence raised by the ground of appeal relating to this category.

…

84 … In this case its statutory task was not simply to undertake anew the assessment that the medical specialist had been required to undertake to resolve the medical dispute lying between the parties, in order to resolve the matters raised by this appeal.

85 The Panel’s error was not simply the result of it reaching a different conclusion to that arrived at by the medical specialist, as to the merits of what the parties had joined issue over, a matter which this Court could not review under s 69 of the Supreme Court Act. Rather, its error was the result of the Panel’s erroneous approach to its resolution of the matters raised by the appeal, which had the result that it failed to perform its statutory function, concerned as that was in this case with the identification and correction of error. That is an error which this Court has power to address under s 69.”

44. Select Civil seeks to distinguish Versace in a number of ways. Firstly that the relevant class of descriptors for self care and personal hygiene depended on factors self reported by Mr Parker rather than observable clinical judgments on the day of the relevant examination; secondly, the Appeal Panel in Versace proceeded to conduct a review of the material before it reached its own conclusion concerning the correct assessment and that was contrary to the approach prescribed in s 328(2) and led to Schmidt J’s conclusion that the Appeal Panel had erred. [42].

45. What is clear is that as in Versace, the Appeal Panel in this current judicial review did not receive any new evidence. The Appeal Panel’s role on the appeal was not that of a AMS but to deal with and correct alleged error/s raised by the appeal. The Appeal Panel could not substitute its own view for that of the AMS, absent a finding of error of the kind alleged on the appeal.

46. Mr Parker submitted that in this current judicial review there is critical failure at [27] of the Appeal Panel decision where the Appeal Panel wrongly considered that the AMS erred in assessing Class 3 by saying that “The Panel considers that the AMS has erred in assessing Class 3 because on the proper application of the criteria an assessment of class 2 - mild impairment - is the more appropriate one on the history taken by the AMS and the available evidence.”

47. According to counsel for Mr Parker, the Appeal Panel’s view that “the AMS has erred” was itself erroneous because it did not identify a real error despite purporting to do so. In effect, it came to a finding that its “application of the criteria” led it to a different conclusion namely that Class 2 is a more appropriate category. Mr Parker submitted that the Appeal Panel did not express a view, let alone make the necessary finding and it was open to the AMS to find a Class 3 impairment. The closest it came to expressing such a view or finding is at [25] when it stated:

“… AMS assessed a moderate impairment, however, the history taken and the available evidence are consistent with criteria for rating a mild impairment at class 2 because the worker is primarily able to live independently...”

48. Select Civil submitted that, the Appeal Panel accurately summarised the distinguishing features between Classes 2 and 3 ([22]), and as such it was clear that they had those matters in mind in the subsequent paragraphs. Select Civil then argued that the Appeal Panel by saying Mr Parker was primarily able to live independently, implicitly meant that this was without regular support, because the notion of living independently means without regular support.

49. Select Civil asserted that the Appeal Panel explicitly found that the “incorrect criteria” and “demonstrable error” grounds advanced by it on appeal had been made out. This is because of the Appeal Panel’s discussion at [23] of the history taken by the AMS and its discussion of Dr Canaris’ conclusions at [26] indicates that the Appeal Panel had regard to a range of examples of activities in reaching its conclusion. Further, when [25] to [27] of the Appeal Panel’s reason are read fairly and in context, the clear import of the findings at [25] is that a Class 2 rating was the only rating available on the evidence and the history recorded by the AMS.

50. Mr Parker submitted that the Appeal Panel has merely gone so far as to express a view and find that the history is “consistent with” the criteria for a Class 2 impairment and that a Class 2 impairment is “more” appropriate. According to Mr Parker this reflects a mere “difference of opinion”. He referred to Ferguson v State of NSW & Ors [2017] NSWSC 887 (“Ferguson”) at [24] where the Appeal Panel demonstrated it understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense. According to Mr Parker this has not been shown by the Appeal Panel.

51. Select Civil responded by saying that references to “mere differences of opinion” distract from the live issue of whether the Appeal Panel correctly discharged its review function pursuant to s 328(2), read in line with s 327(3).

52. Further, Mr Parker, submitted because “the history ...and …evidence” is consistent with Class 2 does not mean it is not also consistent with a Class 3 impairment. To the extent that it may be said, in opposition, that the Appeal Panel is implicitly saying “the history taken and…evidence” is inconsistent with Class 3, this argument is weakened when the words “more appropriate” (Aff, Jones 13/7/2017, 248) are read in the context of the word “consistent” (Aff, Jones 13/7/2-17, 247).

53. Select Civil conceded that it may be true that read in isolation, the words “more appropriate” could be understood to mean that the Appeal Panel was saying that both Class 2 and 3 impairment were open but that they simply preferred one to the other.

54. Select Civil then drew attention to Classes 2 and 3 of the Guidelines in order to demonstrate that it was plain from these criteria that the distinction between the Classes turned on Mr Parker’s capacity to live independently. Therefore, in finding that the history and evidence were consistent with Class 2 “because the worker is primarily able to live independently” the Appeal Panel identified why Class 2 had to be applied to the exclusion of Class 3. In doing so the Appeal Panel was expressing the conclusion that the AMS had erred by applying the wrong criterion and it then corrected that error.

55. Mr Parker also submitted that the Appeal Panel has not alluded to the possibility of differing clinical judgments being available on the day of the assessment in relation to the self care and personal hygiene category.

56. In summary, Mr Parker asserted that the Appeal Panel’s decision contains no indication that relevant principles in conducting assessments under the Guidelines have been taken into account or understood. Mr Parker says that:

1. The PIRS category descriptors are only examples and are not prescriptive.

2. The clinical assessment of the assessor on the day of the assessment is very important.

3. The assessor is required to exercise clinical judgment.

4. Differing clinical judgments may have been available on the day of the assessment.

5. The phrase “class descriptors” in clause 11.12 of the Guidelines refer to the initial words in each class in Table 11.1, eg, each class commences with a description of the levels of impairment falling within that class. The nomination by an AMS of a number is sufficient to show what he or she considered to be the level of impairment after taking everything into account and exercising clinical judgment. The remaining content are only examples that might support the particular class descriptor: Jenkinsv Ambulance Service of New South Wales [2015] NSWSC 633 (“Jenkins”) at [49]-[50] and [54]-[65].

57. On the bases above, Mr Parker contended that the Appeal Panel has committed jurisdictional error because it proceeded to conduct its own review, on the papers, without properly identifying error by the AMS. Alternatively, it constructively failed to exercise its jurisdiction by failing to arrive at a proper finding of error within the meaning of s 328 Workplace Injury Management & Workers Compensation Act.

58. In response, Select Civil submitted that Mr Parker’s complaint regarding the Appeal Panel’s alleged failure to allude to the possibility of differing clinical judgments being available on the day of assessment is without basis and referred to paragraphs [8] and [9] of the Appeal Panel’s reasons that are reproduced earlier in this judgment. According to Select Civil this was unsurprising given the circumstances, where the relevant class descriptors for “Self Care and Personal Hygiene” depended entirely upon objective factors self reported by Mr Parker, rather than observable clinical judgments on the day of the relevant examination.

59. Select Civil also submitted that it was not impermissible or inappropriate for the Appeal Panel to give decisive weight to the plaintiff’s capacity to live independently in reaching its conclusion on “Self Care and Personal Hygiene” and to the contrary, under the Guidelines that concept was the essential distinguishing feature between a Class 2 impairment and a Class 3 impairment.

60. Moreover, according to Select Civil the only substantive criteria provided in Chapter 11 of the Guidelines for rating or evaluating functional impairment in dealing with psychiatric and psychological disorders are the scales discussed at [11.11] and [11.12] and set out in Tables 11.1-6. At 11.12, the Guidelines make clear that “impairment in each area is rated using class descriptors” and that “the examples of activities are examples only”. Therefore, Select Civil submitted that on a proper reading of the class descriptors for “Self Care and Personal Hygiene”, an assessment of a person’s ability to live independently was central to the rating exercised to be performed under 11.12 of the Guidelines and Table 11.1. The person’s capacity to live independently is therefore the critical descriptive feature used in distinguishing between each of the class descriptors and is not to be regarded as an example of an activity such as “reliance on takeaway food” or “community nurse visits”. Finally, on this topic, Select Civil submitted that the examples of “needs prompting to shower daily and wear clean clothes” from Class 3, under 11.12 of the Guidelines, are examples only, meaning that they do not need to be applied or satisfied in each case. Rather, the critical distinguishing feature is the class descriptor, which in this case is whether the individual can live independently or not.

61. Counsel for Mr Parker also drew this Court’s attention to Sanhueza v AAMI Limited [2010] NSWSC 774 (“Sanhueza”), an authority that was not referred to by the Appeal Panel. In Sanhueza, Mr Sanhueza developed PTSD as a result of a motor vehicle accident. One of the issues raised in the judicial review was whether the Appeal Panel was in error by determining that Mr Sanhueza fell into Class 2 for self-care and personal hygiene. Smart AJ stated at [66] to [68]:

“66 Counsel for Mr Sanhueza reminded the Court of the terms of Table 7.1 and Class 3 in which after the words “Moderate impairment” the words “[c]annot live independently without regular support” follow. Various other illustrative factors are given. Counsel pointed out that Mr Sanhueza did no cooking, had to be reminded to shave and to change his shirts, and that his wife had to prompt him in areas of basic hygiene. Counsel submitted that the Panel’s thinking seemed to have been that Class 2 would be correct because he would present at work in a clean way, but that was not the test stipulated in the Guidelines in assessing whether there was Class 3 impairment. Counsel contended that the Panel had applied the wrong test.

67 Table 7.1 – self care and personal hygiene, Class 2 reads:

“Mild impairment. Able to live independently and look after self adequately, although may look unkempt occasionally. Sometimes misses a meal or relies on take-away food.”

That does not include a case where the claimant cannot live independently without regular support. That includes a need for prompting to shower daily and wear clean clothes. In the present case Mr Sanhueza had the regular support of his wife. That was not disputed.

68 In its reasons the Panel wrote:

“The panel was mindful of the enduring pattern of functioning demonstrated by Mr Sanhueza’s work record.”

The materials reveal that Mr Sanhueza reported for work without assistance and drove a bus for a maximum of nine hours per day and had done so for some years. While at an early stage he received some support, he had been doing so independently. As part of its reasoning process, the Panel is perhaps inferring that Mr Sanhueza can live independently without regular support by presenting for work in a clean state and driving a bus. However, where that is preceded by regular support from his wife, that does not mean that Mr Sanhueza is excluded from the category of “cannot live independently without regular support”. In my opinion the Panel did not apply the test stipulated in the Guidelines.”

62. It is fair to say that in Sanhueza the Appeal Panel did not take into account that the plaintiff could not live independently and required the support of his wife. Select Civil seeks to distinguish the position of Mr Parker from that of Sanhueza on the basis that Mr Parker’s situation is not one in which the only reason he could live independently was because of the regular support.

Consideration

63. 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 task of the Appeal Panel is a two stage process as explained by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]:

“However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.”

64. Both the AMS and the Appeal Panel are obliged to comply with the relevant statutory provisions set out earlier in the judgment and the guidelines (s 331). Both the AMS (at page 10 of the MAC) and the Appeal Panel at [22] set out the relevant descriptors that are identified in Class 2 and Class 3.

65. In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (“Wark”), where it is stated at [33]:

“…the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. …”

66. 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 [24]). The Appeal Panel assessed a moderate impairment on the basis that the history taken and the available evidence are consistent with criteria for rating a mild impairment at Class 2 because in its opinion the worker is primarily able to live independently. ([25]). (My emphasis). To support this finding the Appeal Panel stated that it was consistent with the available evidence and it accorded with the report of the worker’s own medico legal expert, Dr Canaris, dated 29 January 2016 (some eight months before the AMS made his findings on Mr Parker’s mental state examination). The AMS’s findings were that in assessing Class 3, the AMS conducted a medical examination and recorded his findings at [5]. In assessing Class 3, the AMS stated that Mr Parker did not shower regularly, generally four times per week, and that he frequently missed meals as he only prepared his own meals twice a week. He would also need prompting to maintain a minimal level of nutrition and hygiene.

67. The Appeal Panel identified the “error” by stating that the AMS haD erred in assessing Class 3 because on the proper application of the criteria an assessment of Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence. ([27]). (My emphasis).

68. However, it is important to appreciate that the descriptors, or examples, describing Class 2 and Class 3 of impairment for self care and hygiene are “examples only”: see Jenkins. These descriptors are not intended to be exclusive and are subject to the variables that accompany a person seeking psychiatric help such as age, sex and cultural norms: see Ferguson [14].

69. So far as being able to live independently, the AMS recorded that Mr Parker needs prompting to maintain a minimum level of nutrition and hygiene. (My emphasis). This finding does not indicate that Mr Parker can live independently. However, the Appeal Panel determined that Mr Parker was primarily able to live independently and that the Class 2 rating mild impairment was more appropriate.

70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.

71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene. There is an error of law on the face of the record. I am satisfied that the plaintiff has made out a case for an order in the nature of certiorari.

72. In light of the above, it is not necessary for me to deal with the further grounds of judicial review.

73. Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff’s costs on an ordinary basis.

The Court orders that:

(1)   The Appeal Panel’s medical assessment certificate and statement of reasons dated 18 April 2017 is set aside.

(2)   The matter is remitted to the Workers Compensation Commission to be determined according to law.

1. The defendant is to pay the plaintiff’s costs on an ordinary basis.

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Amendments

21 February 2018 - Typographical error para [34]

Decision last updated: 21 February 2018