Rogers v Health Services Union NSW

[2025] NSWSC 291

Supreme Court

New South Wales

Medium Neutral Citation:

Rogers v Health Services Union NSW [2025] NSWSC 291

Hearing dates:

27 March 2025

Date of orders:

31 March 2025

Decision date:

31 March 2025

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

1. The Appeal Panel’s Medical Assessment Certificate dated 16 August 2024 in matter number W983/24 is set aside.

2. The matter is remitted to the third defendant for referral to a differently constituted Appeal Panel chosen under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

3. The first defendant is to pay the plaintiff’s costs.

4. No order as to costs is made in respect of the second and third defendants.

Catchwords:

ADMINISTRATIVE LAW — judicial review of decision of medical Appeal Panel — where Appeal Panel revoked a “medical assessment certificate” on the basis of “demonstrable error” and issued a new certificate — where plaintiff experienced psychological “permanent impairment” — where dispute about degree of impairment — consideration of Travel under the Psychiatric Impairment Rating Scale classes — whether examples in guidelines prescriptive

Legislation Cited:

Workers Compensation Act 1987 (NSW), ss 4, 15, 65A, 66

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 322, 327, 328

Cases Cited:

Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633

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

Texts Cited:

NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, Chs 1.6, 11, 11.6 11.7, 11.12, 11.16

Category:

Principal judgment

Parties:

Karen Rogers (Plaintiff)
Health Services Union NSW (First Defendant)
Member Elizabeth Beilby, Dr Douglas Andrews and Dr Michael Hong as an Appeal Panel constituted pursuant to s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Second Defendant)
President of the Personal Injury Commission (Third Defendant)

Representation:

Counsel:
Mr S McMahon (Plaintiff)
Mr P Perry (Defendant)

Solicitors:
Bartley Lawyers Pty Ltd (Plaintiff)
Hicksons Newcastle (First Defendant)
The Crown Solicitor (Second and Third Defendants)

File Number(s):

2024/411962

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Personal Injury Commission

Jurisdiction:

Workers Compensation Division

Date of Decision:

16 August 2024

Before:

Elizabeth Beilby; Douglas Andrews; and Michael Hong

File Number(s):

M1-W983/24

JUDGMENT

1. A summons was filed on behalf of the plaintiff on 6 November 2024. An amended summons was filed on 4 March 2025. The plaintiff is seeking judicial review of a decision made by the second defendant on 16 August 2024.

2. The plaintiff is a former employee of the first defendant. The second defendant is an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act).

3. The third defendant is the President of the Personal Injury Commission of New South Wales.

4. The second and third defendants have filed submitting appearances.

5. The background starts with the plaintiff suffering a psychological injury during her employment by the first defendant. She had the role of a union organiser. Pursuant to ss 4(b)(i) and 15 of the Workers Compensation Act 1987 (NSW) (WCA), the plaintiff’s deemed date of injury is 13 July 2015.

6. The plaintiff made a successful claim for workers compensation under the WCA. She has received weekly benefits and treatment and other medical expenses.

7. In addition, the plaintiff, on 7 March 2023 claimed lump sum compensation. In order to receive such compensation, she needs to establish that she had suffered a degree of permanent impairment of at least 15% (ss 65A and 66 of the WCA).

8. In order to establish the 15%, the plaintiff relied on the opinion of a psychiatrist, Dr Snowdon, dated 1 March 2023. Dr Snowdon concluded that the plaintiff was suffering from a whole person impairment of 15%.

9. The first defendant, by its insurer, disputed Dr Snowdon’s assessment and sent the plaintiff to a different psychiatrist, Dr Malik, for his opinion. Dr Malik saw the plaintiff on 25 October 2023 and provided a report dated 20 November 2023. Dr Malik disagreed with Dr Snowdon. Dr Malik assessed the plaintiff’s whole person impairment at 6%.

10. On 7 February 2024 the plaintiff filed an application in the Personal Injury Commission of New South Wales to resolve the dispute as to her whole person impairment. The difference between the respective assessments amounted to a medical dispute as defined in s 319 of the WIM Act.

11. The medical dispute led to the Registrar of the Commission referring the dispute to a medical assessor pursuant to s 322 of the WIM Act.

12. The appointed medical assessor was Dr Mason, a psychiatrist, who examined the plaintiff on 12 March 2024 and then issued a Medical Assessment Certificate on 14 March 2024. The certificate stated that the plaintiff’s degree of whole person impairment was 15%.

13. Once again, the first defendant did not agree with the 15% assessment and, on 11 April 2024, filed an appeal pursuant to s 327 of the WIM Act. The appeal was heard by the second defendant (a Commission member sitting with two medical assessors). A decision was given on 16 August 2024. The Appeal Panel set aside Dr Mason’s certificate.

14. The Appeal Panel then went on to assess the plaintiff’s whole person impairment. It arrived at 7%. The Appeal Panel issued a new certificate dated 16 August 2024 stipulating a total whole person impairment of 7%.

15. The plaintiff says the Appeal Panel’s decision was erroneous because, partially in my words:

1. The Appeal Panel made an error of law in “misapplying the test as to whether there was error on the part of the Medical Assessor (MA).”

2. The Appeal Panel “failed to exercise jurisdiction when it failed to consider relevant evidence before it.”

3. The Appeal Panel substituted a different opinion “without identifying a real error or without conducting its own clinical assessment or examination of the plaintiff.”

4. The Appeal Panel failed to apply the appropriate principles in finding the medical assessor’s class 3 classification for travel was “glaringly improbable.”

5. The Appeal Panel did not give adequate reasons for deciding that the plaintiff’s travel habits were “incompatible with a Class 3 assessment.”

6. The Appeal Panel did not give proper reasons for finding that “the plaintiff suffered a Class 2 impairment as concerns travel pursuant to the Psychiatric Impairment Rating Scale (PIRS).”

16. “Class” references are to the system of rating applied by the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4^th ed.

17. Although there are six grounds of appeal they significantly overlap and in practical terms all centre on the same issue; namely whether the classification made by the Appeal Panel in respect of travel was erroneous in a manner that justifies judicial review.

18. In respect of travel, which is at the core of these proceedings, Table 11.3 provides this guide:

“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.

Class 2: Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

Class 3: Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.

Class 4: Severe impairment: Finds it extremely uncomfortable to leave own residence even with trusted person.

Class 5: Totally impaired: May require two or more persons to supervise when travelling.”

19. Once a class of impairment has been decided the class is translated into a score of points through the formula set out from Ch 11.16, including the conversion Table 11.7.

20. Dr Snowdon put the assessment for travel into Class 1. The reason he gave was:

“Ms Rogers said that she is very able to drive alone, to anywhere she wants, saying that, in her car, possibly because of how much driving she had done in association with her work with the Health Services Union, she feels ‘at ease’ when doing so.

Accordingly, she scores Class 1 for this area.”

21. Dr Malik placed the plaintiff in Class 2. He gave this reason:

“Able to drive, when she is in the car, she feels safe as doors are locked, can travel without support person to familiar places but on unfamiliar places she gets anxious.”

22. Dr Mason, the medical assessor, said the assessment was in Class 3. His reason was:

“Ms Rogers said she is able to drive locally and travels to see her GP every month. She is not able to use any form of public transport because of anxiety. She said is unable to use air transport for a similar reason. She does not feel safe to leave her home without a support person. She is moderately impaired.”

23. After finding that a Class 3 assessment was “glaringly improbable”, the Appeal Panel thought the appropriate assessment for the plaintiff was Class 2. The reason was:

“The fact that the respondent finds public and air transport unusable due to her anxiety would take her out of a Class 1 rating as the general population is able to use those modes of travel. The Appeal Panel therefore assesses the respondent a has (sic) having a class 2 impairment in relation to travel.”

24. There is no suggestion that any of the medical practitioners took an incorrect history. The first defendant did suggest that there was no deterioration in the plaintiff’s condition as she moved through the periods of the above three assessments. It was also suggested that there may have been some improvement by the time the plaintiff was seen by Dr Malik.

25. The Appeal Panel was also of the view that the respondent’s psychological condition had not changed since she had consulted Drs Snowdon and Malik. Its reasons state at [35]:

“It should be observed that there is no evidence that there has been a change in the respondent's psychological condition so that the histories taken by both Drs Snowden and Malik should be given little weight.”

26. In order to assess whether there had been deterioration, I think it important to look beyond the simple reasons that each doctor gave for their respective classifications. Dr Snowdon’s description in respect of travel bespeaks very little disability and even refers to the plaintiff being “at ease” when travelling.

27. Dr Malik examined and assessed the plaintiff about eight months later. By this time, the description in relation to travel is significantly different. The plaintiff now only feels safe because the car doors are locked; she can only travel to familiar places without a support person; and she suffers anxiety when going to unfamiliar places. In my view there is a very clear deterioration by the time the plaintiff sees Dr Malik. This is confirmed by Dr Malik now placing the plaintiff, for travel, within Class 2 whereas Dr Snowdon had her in Class 1.

28. Dr Mason saw the plaintiff about five months after Dr Malik. His history includes the following:

“The long-term consequence has been that Ms Rogers is afraid to leave her home. She said she does not go anywhere unless she is accompanied because of anxiety. She said an exception to this was to attend medical appointments or the local shops on rare occasions. She said she does not leave the house to visit her children or grandchildren and relies on them to visit her.

…

She feels safe and only if she is locked in her house. She said her partner does the shopping and she feels anxious whenever she has to leave the house even when accompanied. She said her daughter will take her to the shops but they have to park close to an entry so she can escape from the shopping centre if necessary.”

29. In respect of her employment, the plaintiff works as a telephone consultant which she does from home. However, as Dr Mason recorded:

“The other negative component of the job is the requirement to attend monthly training in Newcastle. She said she is able to manage this only because her manager is supportive and will escort her to and from the car park.

…

Ms Rogers said she continues to lock herself away inside her home. She does not go anywhere alone except to her doctor. She remains anxious and tense.”

30. My reading of the history given to Dr Mason is of a much worse condition, in respect of travel, than that given to Dr Malik. The Appeal Panel was wrong to observe that there had been no change in the respondent’s condition.

31. I do agree with the first defendant about the criticism made by the plaintiff that the panel had not itself assessed the plaintiff. I do not think this criticism is made out. The Appeal Panel could not have conducted a further assessment. A referral would have been needed under s 329. I do not see why the panel could not rely on the previous assessments, especially bearing in mind that it was conducting an appeal from Dr Mason’s assessment. Of course, use of the previous assessments requires that they be interpreted correctly.

32. The deterioration I have outlined above might, logically, generate a movement of the plaintiff from Class 2 to Class 3.

33. However, placing the plaintiff into Class 3 raises the question of the force of the example contained within the PIRS rating Scale, and in particular whether any travel “away from own residence without support person” necessarily excluded placement within Class 3. The first defendant submitted that the example was so simple and so clear that any factual circumstances outside the example precluded placement within Class 3. Therefore, the plaintiff driving locally and to her GP without a support person of itself prevented the plaintiff from being placed within Class 3.

34. The first defendant did concede that the plaintiff travelling to her work seminars where she was escorted from her car to the building did qualify as travelling with a support person, but the first defendant emphasised that the local journeys unquestionably fell outside of the example.

35. In turn, argued the first defendant, the Appeal Panel, noting the local travel, was correct to find that the Class 3 assessment was “glaringly improbable”. This straightforward approach, submitted the first defendant, was adequately explained in the Appeal Panel’s decision at [34] and [36]:

“34. The Appeal Panel has considered all the submissions made by both the appellant and respondent. What is apparent after considering the evidence is that the respondent has the capacity to travel without a support person. This is illustrated in the fact that she is able to attend the Newcastle office for work, be it only once per month, on the condition that she is walked back to the carpark, presumably to drive her self home. This is also consistent with the histories given to Dr Malik and Dr Snowden who both took histories that the respondent was able to drive independently. Such a factual matrix makes a Class 3 classification 'glaringly improbable'.

36. Whilst the respondent told the Medical Assessor that she did not feel safe to leave her home without a support person, the fact remains that she is capable to do so and in fact does do so. This is incompatible with a Class 3 assessment.”

36. The issue then arises as to the weight to be given to the example. In other words, does a particular journey (such as to the GP or the local shops), or even one instance of ‘solo’ travel without a support person, necessarily disqualify a Class 3 assessment?

37. Chapter 11 relates to the “method for assessing psychiatric impairment”. Chapter 11.12 states:

“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.” (emphasis added)

38. In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J stated, at [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.”

39. I think it clear that the examples are not mandatory rules. It is not necessary to fit perfectly within or outside of a particular example in order to fall, or not fall, into a particular class. While I agree with the first defendant that the driving example is simple, I disagree that it is therefore prescriptive. I think this is emphasised by Chapter 11.6, which states:

“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 and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the 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 (WPI).” (emphasis added).

40. The just quoted passage, taken with what is stated in chapter 11.12, and the observations of Garling J in Jenkins, combine, I think, to compel these conclusions:

1. the examples do not need to be strictly adhered to; and

2. the history given to the medical assessor and the subsequent diagnosis may all be taken into account in the allocation of a particular Class.

41. The severity of the symptoms given to Dr Mason, which I have quoted above, are consequently available to assist in the placement of the plaintiff within the appropriate class. Further I note the Principles of Assessment in Ch 1.6 which state that an assessment “involves clinical assessment of the claimant as they present on the day of assessment …” giving added strength to Dr Mason’s history which was the most recent.

42. The approach taken by the Appeal Panel, as I read the reasons, is that by simply having journeys where there was no support person, the plaintiff was not able to fit within Class 3.

43. In Jenkins, Garling J made the point, at [73] that:

“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.”

44. The position is different here, the Appeal Panel, by pointing out that the histories given to the doctors included an ability to drive independently, then reached the “glaringly improbable” finding in [34], and then in [36] said that driving without a support person, of itself, was “incompatible with a Class 3 assessment.”

45. The Appeal Panel, in my opinion, made an error on the face of the record, as well as in law, by treating the example in the Class 3 guideline as prescriptive and not as a guide capable of being surmounted by other relevant facts, including the history given by the plaintiff to Dr Mason.

46. The conclusion I have just reached is enough to entitle the plaintiff to succeed. There are nevertheless two other matters that I wish to comment upon. Both parties referred me to the judgment of Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887, and in particular to [24]:

“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel 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.”

47. The first defendant approached the above passage on the basis that it set out the principles to be applied by an Appeal Panel in deciding if intervention was appropriate. With respect, I do not think his Honour was intending to make a statement of principle; rather he was describing the approach that the Appeal Panel had taken in the case before him.

48. The first defendant also submitted that the Appeal Panel was correct to overturn the decision of Dr Mason because of an unsupported reasoning process. This was illustrated by Dr Mason failing to give reasons for disagreeing with Drs Snowdon and Malik about their conclusions on travel.

49. I think there is merit in the submission, but the failings of the medical assessor are not the fundamental issue here, rather it is the existence, or otherwise, of failings on the part of the Appeal Panel. I have found that there was such a failing.

50. There is however a consequence arising from the submissions made about Dr Mason’s errors. The consequence is that the primary relief sought by the plaintiff, namely that the Appeal Panel’s decision be set aside and Dr Mason’s decision be restored, is not appropriate.

51. Rather, as submitted by the first defendant, the correct course to take (which is also the plaintiff’s alternative suggestion) is to make orders similar to those made by Campbell J in Ferguson.

Orders

1. The Appeal Panel’s Medical Assessment Certificate dated 16 August 2024 in matter number W983/24 is set aside.

2. The matter is remitted to the third defendant for referral to a differently constituted Appeal Panel chosen under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

3. The first defendant is to pay the plaintiff’s costs.

4. No order as to costs is made in respect of the second and third defendants.

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Decision last updated: 31 March 2025