Tagg v Racing New South Wales

[2023] NSWSC 1547

Supreme Court

New South Wales

Medium Neutral Citation:

Tagg v Racing New South Wales [2023] NSWSC 1547

Hearing dates:

30 November 2023

Date of orders:

14 December 2023

Decision date:

14 December 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1)   The Appeal Panel’s decision is quashed.

(2)   The matter is referred back to the President of the Personal Injury Commission to be dealt with according to law by a differently constituted Appeal Panel.

(3)   Unless the parties approach to be heard within 7 days, the insurer is to bear Ms Tagg’s costs, as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW — judicial review —Workplace Injury and Management and Workers Compensation Act 1988 (NSW) — decision of Medical Appeal Panel — where Appeal Panel fell into jurisdictional error — failure to apply relevant criteria — failure to provide adequate reasons for its decision and disclose its actual path of reasoning— failure of Appeal Panel to correct the errors of the medical assessor—decision quashed

Legislation Cited:

Supreme Court Act 1970 (NSW), s 69

Workers Compensation Act1987 (NSW), s 66

Workplace Injury Management and Workers Compensation Act 1988 (NSW), ss 121(4), 319, 322, 322(1), 324, 324(1), 324(4), 327(3), 328, 328(1), 328(2), 328(2A)

Uniform Civil Procedure Rules 2005 (NSW), 42.1

Cases Cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

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

Category:

Principal judgment

Parties:

Desiree Tagg (Plaintiff)
Racing New South Wales (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Jane Peacock, Michael Hong, Michael Davies, constituting an Appeal Panel constituted under s 3.28, Workplace Injury Management and Workers compensation Act 1998 (NSW) (Third Defendant)

Representation:

Counsel:
L D Robison (Plaintiff)
C Jackson (First Defendant)

Solicitors:
Santone Lawyers (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2023/227141

Publication restriction:

Nil

JUDGMENT

1. In 2018 Ms Tagg, a jockey, was injured early in the morning at work when the saddle of the horse she was riding rolled and she fell to the ground, with the result that she suffered both physical and psychological injuries. She has not worked again.

2. Ms Tagg later brought a lump sum claim under s 66 of the Workers Compensation Act 1987 (NSW) for injury to her cervical spine, left upper extremity, TEMSKI/Scarring and psychiatric/psychological injury. She claimed that the totality of her physical injuries was 31% whole person impairment and her psychiatric injury, 22% WPI.

3. Ms Tagg’s injuries were assessed by three medical assessors: s 319 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW). There was no issue between the parties about liability, but a dispute about the degree of her permanent impairment. Those assessments had to be undertaken in accordance with the applicable guidelines, the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment issued by the State Insurance Regulatory Authority and the AMA Guides to the Evaluation of Permanent Impairment, 5^th edition: s 322(1) of the 1988 Act.

4. Dr Anderson, an occupational physician assessed the result of Ms Tagg’s orthopaedic injury to be 12% WPI. Dr Spittaler, a neurosurgeon, failed to make the required assessment of her physical injuries. And Dr Andrews, a psychiatrist, also failed to assess Ms Tagg’s psychiatric injury.

5. Ms Tagg appealed the assessments of Dr Spittaler and Dr Andrews, contending that it was not open to either of them to elect not to make an assessment of the injuries she had suffered. The grounds of such appeals were limited to those specified in s 327(3) of the 1988 Act. Her appeals raised incorrect criteria and demonstrable error.

6. Ms Tagg now seeks judicial review of the Appeal Panel’s decision under s 69 of the Supreme Court Act1970 (NSW). She seeks orders quashing its decision and requiring her appeal to be determined afresh according to law by a differently constituted Appeal Panel. Her case is that the Panel fell into jurisdictional error in also failing to assess her impairments in accordance with the applicable guidelines; taking into account irrelevant considerations in relation to her physical disability; failing to take into account all aspects of her psychiatric injury and her traumatic brain injury; failing to correct Dr Spittaler’s error; and also failing to provide adequate reasons for its decision.

7. The President of the Personal Injury Commission and the members of the Appeal Panel have filed submitting appearances. Racing New South Wales defended Ms Tagg’s case, contending that there had been no jurisdictional error, the guidelines having been adhered to by the Panel, it only having taken relevant considerations into account and the reasons it had given being adequate.

Conclusion

8. For the following reasons I am satisfied that Ms Tagg has established her case and that the orders that she seeks must be made.

The issues

9. The issues lying between the parties were identified to be:

“1.   ….

2.    … the broad question is whether any of the grounds of the review in the Plaintiff’s further amended summons are made out.

3.   … what constitutes the record, in this case.

4.   …

4.1.   The manner in which the Appeal Panel assessed whole person impairment as a result of psychiatric impairment, and whether it erred in any of the ways alleged in grounds 1-4 of the Plaintiff’s further amended summons.

5.   … whether or not the Appeal Panel erred either by “failing to assess” traumatic brain injury … or failing to give adequate reasons ….

5.1.   More particularly, …

(i)   Whether the Appeal Panel failed to assess WPI as a result of TBI at all; or

(ii)   If it did assess it, but on their reading of the Guidelines, determined that the rateable WPI was zero because, on the Appeal Panel’s reading, the criteria at clause 5.9 for “clinical assessment” were not met, whether that reading and application of the Guidelines was reasonably open to the Appeal Panel.

6   More particularly, … whether or not the Appeal Panel’s path of reasoning is clear.”

The assessments

10. To understand what lies in issue between the parties, the four certificates issued in respect of Ms Tagg’s injuries need be understood, the assessors and the Panel each having considered her claims in accordance with the applicable guidelines.

Dr Anderson

11. Dr Anderson’s certificate has not been challenged and is binding: s 121(4) 1988 Act. He noted that Ms Tagg’s relevant history was:

1. She had fallen off the horse during training in the early morning while it was still dark, unobserved by anyone else and had no recollection of her fall;

2. She was found after the horse was observed without a rider, having suffered:

•   Extensive facial soft tissue injuries.

•   Closed head injury.

•   Fracture-dislocation at her left shoulder.

•   Soft tissue injury to her neck.

•   Other minor bumps and bruises which have long since resolved.

3. For unexplained reasons senior management had declined to call an ambulance. Ms Tagg had been taken home and from there to hospital, after her husband’s return home;

4. After extensive radiological investigation her head injury was managed conservatively;

5. Her left shoulder was repaired by an arthroscopic procedure to her rotator cuff and internal fixation of a fracture to her greater tubercle, the proximal part of the humerus, undertaken by Dr Duckworth, a specialist shoulder surgeon;

6. Ms Tagg had extensive further neurological review and also further management under Dr Russo, a specialist pain management physician;

7. She still took an extensive range of medication to control ongoing seizures, pain, a gastrointestinal condition and her pre-existing ADHD.

12. Dr Anderson also noted that:

1. Ms Tagg’s then present symptoms included pain in her neck which radiated through the back of her head and forwards as tension headaches; severe pain in her left shoulder complex, with gross restriction of movement and power; itchiness and irritability of the surgical scar on her left shoulder; and continuing seizures;

2. She had suffered previous injury to her neck, back, pelvis and shoulder which had all healed well and she had achieved excellent resolution, permitting her to continue riding as a jockey and track work rider, she having ridden professionally since she left school at 14;

3. Since her fall, Ms Tagg had not been able to ride and had not performed any other work;

4. She had for many years been on medication for her ADHD, which had been aggravated by the fall, necessitating an increase in her medication;

5. She was a gifted pianist and could also play the saxophone, but since the fall had been unable to effectively read music and got very irritated when she tried. The result was that she now plays completely by ear;

6. She was being cared for by her husband and was limited to assisting at home with simple activities and simple structured tasks;

7. On physical examination she did not appear to be in gross discomfort, but had an extremely stiff neck, a lot of irritation in her neck and very gross restriction of movement; her right arm appeared very jumpy; her restricted shoulder movements were measured, but no neurological features were identified;

8. The details of past investigations of her injuries were explained, as was the difficulty of assessing the consistency of her presentation, given the combination of features which were likely to have neurological and/or psychological components. But her presentation, with assistance from her husband, did appear to be consistent.

13. Dr Anderson’s evaluation of Ms Tagg’s permanent impairment included:

1. that previous injuries suffered before her fall had resolved to enable her to continue with a physically arduous and athletic occupation of riding as a jockey, with the conclusion that she had no significant pre-existing injury before her fall;

2. her WPI consisted of 7% cervical spine; 4% left upper extremity and 1% scarring, the calculation of which was explained;

3. the observation that the conclusions Dr Andrews had reached were similar to those of Dr Bodel in June 2020 and their differences were explained, as well as the different conclusion which Dr Anderson had reached in relation to scarring, to that reached by Dr Powell in May 2021; and

4. that Dr Abraszko had not provided details in her December 2020 report, for her conclusion of 14% WPI upper extremity impairment.

Dr Spittaler

14. What was referred to Dr Spittaler for assessment was Ms Tagg’s nervous system. His undated certificate, certified by the President’s delegate, Ms Dotti, the team leader of dispute services, indicates that he, too, examined Ms Tagg and received a similar history of how she had come to fall and the injuries she had suffered as a result.

15. Dr Spittaler particularly noted Ms Tagg’s ongoing issues with her head injury and the document in which she described her then current cognitive and cerebral symptoms. But he did not explain what they were. Nor did he deal with her ongoing seizures, although he made passing reference to a seizure while she was in hospital.

16. Dr Spittaler explained his findings on physical examination and the details of investigations which had been pursued. They included two CT scans on the day of her fall in June 2018, at Wyong Hospital, which were reported as normal and a third CT scan of her head in September 2019 also normal, as well as an MRI scan of her brain and an EEG, all also normal.

17. Dr Spittaler noted that the injury the subject of his assessment was a traumatic brain injury; that he considered that it had reached maximum medical improvement; that the applicable Workcover Guides required assessment of a traumatic brain injury to have evidence of a severe impact to the head, which he found was consistent with her fall off a galloping horse and the injuries which had been observed in hospital. Namely, significant right periorbital bruising and an abrasion on the bridge of her nose and lips.

18. Dr Spittaler considered that the applicable Guides required, at cl 5.9 that “Clinical assessment must include at least one of the following:

•   Significant medically verified abnormalities in the Glascow Coma Scale Score

•   Significant medically verified duration of post-traumatic amnesia

•   Significant intracranial pathology on CT scan or MRI.

19. This understanding of the Guides was challenged as being incorrect.

20. So approaching the Guidelines Dr Spittaler concluded that there was no evidence of a medically verified depressed Glascow Coma Scale, despite mention in the surgical consult notes of concussion. He considered that a reported loss of consciousness may have been an early post traumatic seizure, but concluded that did not constitute a low GCS scale. The subsequent CT scan was normal. In admission notes there was a direction to undertake a post trauma amnesia scale, which he explained was a means of assessing post-traumatic amnesia, but there was no evidence that one had been performed. All other testing was normal.

21. This resulted in Dr Spittaler’s conclusion that “Based on these findings of the documents I am unable to assess the worker as having sustained a significant traumatic brain injury according to the Workcover Guidelines.”

22. The reasons Dr Spittaler gave for that conclusion included that he was unable to assess WPI. He explained:

“I note the report of Dr Renata Abraszko (reference pages 51-61) for the worker’s solicitor. Dr Abraszko notes that the CT of the brain and subsequent MRI of the brain was normal. Dr Abraszko assesses the worker as having a 20% whole person impairment due to her traumatic brain injury. However, nowhere in Dr Abraszko’s report is there a reference to the requirements to be able to assess traumatic brain injury which I have referred to above (GCS abnormality, PTA duration or abnormality on imaging).

I note the report of Professor Robert Heard dated 6 September 2018. Professor Heard saw the worker on a clinical basis after referral by her general practitioner. The history Professor Heard elicits is consistent with the history I elicited and the rest of the documents. He notes that in the discharge summary there was no mention of GCS or PTA. I presume Professor Heard has not seen the rest of the brief. He states from the worker’s history there was a post-traumatic amnesia period of three days, but this is not medically documented and cannot be relied on according to the Workcover Guidelines.

I note the report of Dr Ron Granot, neurologist dated the 10th of March 2021. Dr Granot refers to a report by Dr Neil Simon from January 2019 which I have not seen. Dr Granot notes the lack of documented GCS abnormality or abnormality on CT scan and similarly notes there was no PTA recorded. On that basis, Dr Granot feels there is no assessable impairment due to a traumatic brain injury.”

Dr Andrews

23. What was referred to Dr Andrews was Ms Tagg’s psychiatric/psychological injury.

24. In his certificate, Dr Andrews referred to similar matters of history. He explained the treatment Ms Tagg had received from her GP, psychologist and psychiatrist after the accident, as well as her current medications and current symptoms, as well as her preinjury general health, work history, social activities and activities of daily living. He also explained his findings on physical examination, having assessed Ms Tagg by video link.

25. Dr Andrews summarised Ms Tagg’s injuries and his diagnoses, applying the DSM-5 to be:

•   Somatoform disorder (DSM IV TR) or somatic symptom disorder (DSM-5)

•   Persistent depressive disorder with anxious distress

•   ADHD-a pre-existing diagnosis.

26. Dr Andrews concluded that Ms Tagg did not have a primary psychiatric disorder, despite observing that she had many unusual symptoms and presented as a sincere and honest woman. He considered, however, that she had reached maximum medical improvement, it having been more than 3 years since the accident and that she had received medication and psychotherapy without apparent benefit. He also considered her condition to be stable and that it would not improve significantly, with or without treatment.

27. In his reasons Dr Andrews also referred to her hospital admissions in June 2018, when she denied having lost consciousness; her then Glascow Coma Scale found initially to be 14/15 and later 15/5 and the recording of an impression that she had a concussion; but there being no mention in her discharge papers of a traumatic brain injury and her CT scans being normal; and her report that she had slipped into a non-responsive coma while in hospital, responded to by a rapid response team, which her husband had observed, but she had no memory of.

28. Dr Andrews found no hospital record of this but, did not discount the possibility.

29. Dr Andrews also noted her GP’s subsequent observation in October that the consensus was that Ms Tagg was suffering from anxiety exacerbation on post-concussion syndrome. Her treating neurologist Dr Heard, noting in December that she was suffering non-epileptic dissociative seizures, a functional neurological disorder likely to have developed as a direct consequence of the trauma she had suffered. His impression was that she had also developed a significant anxiety state and possibly PTSD.

30. Dr Andrews also noted that her psychologist later recommended her treatment cease, so that she could dedicate her resources to her pain management program. Dr Bodel found in June 2020 that she had suffered 14% WPI for her orthopaedic injuries and that she had a closed head injury with a traumatic brain injury.

31. Her treating psychiatrist Dr Ramalingham also noted at various dates her non-epileptic seizure like episodes, which had developed in the context of her fall. The neurologist Dr Granot considered in March 2021 that her symptoms were not the result of a brain injury, but a psychiatric presentation from her physical injuries, possibly an adjustment disorder.

32. The neurologist Dr Simon considered in January 2019 that her persistent cognitive symptoms were consistent with facial injury and concussion, which the trauma to her head face or neck was a suitable mechanism to have produced. He agreed with Dr Heard that there were features of post-concussion syndrome which had evolved into a functional neurological disorder.

33. Dr Takyar, a psychiatrist also considered that she suffered an adjustment disorder with mixed anxiety and depressed mood (chronic in the context of her physical injuries and pain). He assessed her WPI at 22%. In February 2021 the psychiatrist Dr Roberts considered that she had a somatoform disorder, suffering a cluster of symptoms for which there was no medical explanation, but was causing distress.

34. Dr Andrews concluded:

“In making my determination, I accept Ms Tagg’s assertion that she suffered a brain injury and the diagnoses of the various clinicians of post-concussion syndrome. The diagnosis of a functional neurological disorder is consistent with a somatoform disorder or somatic symptom disorder.

Ms Tagg does not meet the criteria for post-traumatic stress disorder, a psychiatric condition that could conceivably be a primary disorder in this situation.

Dr Takyar characterised her mood symptoms and anxiety as an adjustment disorder, but adjustment disorders are superseded by an Axis I mood disorder diagnosis. The mood and anxiety symptoms arise in response to her pain and distressing physical symptoms and are secondary. Paragraph 1.22 of the Guidelines states – “No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments.”

35. The result was the conclusion that Ms Tagg had suffered no whole person impairment as the result of her fall.

The Appeal Panel

36. The Appeal Panel had to consider the appeals against the certificates of both Dr Spittaler and Dr Andrews. It gave a statement of reasons for the decisions it came to, some of which is difficult to follow, it must be accepted.

36. The reasons began with an explanation of the background to the appeals, noting that they were being heard together by the one Panel. It explained the statutory scheme, the procedures which had to be followed and the guidelines which applied. It explained that the result of its preliminary review was that Ms Tagg had to be examined again in relation to Dr Andrew’s appeal, but not in relation to Dr Spittaler’s appeal. Why that conclusion was reached when the appeals were being heard together, was not explained.

37. The Panel also noted its obligation to give reasons and to explain in the case of disputed facts, why one conclusion was preferred over another.

Dr Andrews

39. In relation to Dr Andrews, the Panel accepted that there had been relevant error, he having failed to assess the WPI resulting from Ms Tagg’s established injuries.

40. The Panel observed that Dr Andrews had noted that what Ms Tagg suffered included a somatoform disorder, a persistent depressive disorder with anxious distress and ADHD – a pre-existing diagnosis, as well as total body pain, headaches, unexplained neuromuscular problems, non epileptic seizures and nausea. He had considered that she warranted a diagnosis of persistent depression, but not PTSD, and that her mood and anxiety symptoms were secondary to her pain and functional neurological symptoms and physical injuries. But she had no primary psychiatric disorder.

41. At [27] the Panel concluded that “the Medical Assessor had erred in failing to assess impairment from a primary psychological injury. He was required to assess impairment from a primary psychological injury and he erred in failing to do so.”

42. The Panel then proceeded to consider Ms Tagg’s psychiatric injury claim de novo, having taken the view that a further examination was required in respect of only one appeal. I note that both parties agreed that one of the Panel members, the psychiatrist Dr Hong, had been correctly assigned to conduct that examination, but Ms Tagg questioned why further examination was not required on the other appeal.

43. The Panel’s conclusions adopted Dr Hong’s report. It was not in evidence, but the Panel’s certificate must be read as indicating that his report was not confined to the results of his examination of Ms Tagg. The Panel began to quote Dr Hong’s report at [28] of its reasons. At [29], pages later, the Panel stated that it adopted the report and findings of Dr Hong and would thus revoke Dr Andrews’ certificate and issue a new one, which was attached to the statement of reasons.

44. But in the midst of what was quoted at [28], observations of the Panel appear. For example, under the heading “Summary of injuries and diagnoses”, after referring to Ms Tagg’s ADHD and her description of the anxiety symptoms and aggravation of her ADHD symptoms after the fall, it was explained that:

“The Panel concluded Ms Tagg developed an aggravation of ADHD and a new psychological injury, an Adjustment disorder with anxiety symptoms as a result of the subject accident and her psychological injury is a primary psychological injury.”

45. Under the heading “Evaluation of Permanent Impairment” the reasons appear to revert to a quote from Dr Hong’s report, it there being observed “My answers to the following questions ...”. The reasons given for the assessment also appear to be those of Dr Hong, but under the heading “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable the reasons why my opinion differs”, the reasons revert to the Panel.

46. But it was Dr Hong who certified that the impairment was permanent and its degree fully ascertainable.

47. I draw attention to this approach to the Panel’s reasons, because of its obligation to expose its actual path of reasoning and the provisions made in ss 328 and 324 of the 1988 Act.

48. An Appeal Panel must be constituted by 3 persons, two medical assessors and a member of the Commission assigned to the Workers Compensation Commission: s 328(1). Review is limited to the grounds of appeal. A medical re-examination which the Panel considers necessary need not be conducted by all its members: s 328(2A). But that section does not envisage that the review itself will be conducted by only some members of the Panel, with the others then considering and adopting the report of one of its members, about what is raised for consideration by the cases which the parties advance about the grounds of appeal.

49. It is 324(4) which extends powers given by that section to “a medical assessor hearing the appeal”. In this case there were two such assessors. Those powers are specified in s 324(1) to be:

(a)   consult with any medical practitioner or other health care professional who is treating or has treated the worker, and

(b)   call for the production of such medical records (including X-rays and the results of other tests) and other information as the medical assessor considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and

(c)   require the worker to submit himself or herself for examination by the medical assessor.

50. But these specified powers do not include the power to assess the medical dispute which is given to assessors by s 322. The Appeal Panel’s function is limited to the review of the appeal on the grounds advanced: s 328(2). Accordingly, it follows that an Appeal Panel cannot delegate to some of its members the entire review, when it decides that not all of its members will conduct a re-examination.

51. The reasons given by the Panel must, however, be read without an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. While not entirely clear, I consider that it should be accepted that the Panel considered all that Dr Hong reported to it and reached the various conclusions indicated at various points about what it had to review, rather than simply adopting his report as its own.

52. The result was the Panel’s conclusion that Ms Tagg’s pre-existing ADHD had been aggravated and that she had suffered a new primary psychological injury, an adjustment disorder, which had resulted in a 9% WPI. That conclusion resulted from conclusions reached about the class of the various PIRS categories which it had to assess.

53. I will return to them, when considering Ms Tagg’s challenge to the approach the Panel adopted to that assessment. But for now, I note that the Panel observed that Ms Tagg’s physical injuries and pain were her main impediments and not assessable by it. That it sufficiently explained its conclusions, given the requirement to disclose its actual path of reasoning was in issue: Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]

Dr Spittaler

54. The Panel then turned to the appeal against Dr Spittaler’s assessment, noting his conclusion that he was not in a position to be able to assess any permanent impairment relating to a traumatic brain injury. It finally concluded that he had erred in that conclusion, but in reaching its conclusion that Ms Tagg had suffered no whole person impairment as the result of her traumatic brain injury, it adopted many of Dr Spitaller’s conclusions.

55. After noting the parties’ respective cases, the Panel first turned to the reasons Dr Spittaler had given, quoting extensively from them, first at [36]-[39]. The Panel observed that medical assessors were bound to apply the guidelines, referring to guideline 5.9, which it quoted. It then returned to Dr Spittaler’s reasons, quoting from them again from [42]-[44].

56. The Panel concluded:

“45.   The Medical Assessor has made an assessment of impairment in accordance with the correct criteria in the Guidelines. When the MAC is read as a whole, he has assessed that there is no rateable impairment in accordance with the correct criteria in the guidelines. Using his independent clinical judgment and exercising his clinical expertise, he has had regard to the correct criteria which does not allow for an assessment of impairment in circumstances where the significant head injury (which he accepted had occurred) was not accompanied by any one of the following requisite criteria, based on Dr Spittaler’s clinical assessment and for reasons which he has adequately explained:

‘Significant medically verified abnormalities in the Glascow Coma Scale Score

Significant medically verified duration of post-traumatic amnesia

Significant intracranial pathology on CT scan or MRI.’

46.   For these reasons, the Appeal Panel has determined that the MAC issued by Dr Spittaler on 24 August 2022 should be revoked and a new MAC issued assessing 0% whole person impairment for the nervous system, substantive reasoning as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Nervous System	15.08.2018	Chapter 5	Table 13-5, 13-6, page 320	0	Nil	0
Total % WPI (the Combined Table values of all sub-totals)					0%

47.   For these reasons, the Appeal Panel has determined that the Medical Assessment Certificates issued by Dr Douglas Andrews and Dr Spitaller dated 24 August 2022 should be revoked and new Medical Assessment Certificates are attached to this statement of reasons.”

The parties’ cases

57. Ms Tagg contended that despite correctly recognising Dr Andrews’ errors and having Dr Hong conduct a further examination, the Panel also fell into error on the appeal from his certificate, itself not complying with the applicable guidelines by which it was bound.

58. The result was that it failed to apply the criteria specified for the assessment it had to undertake again, in a way that did not involve errors of fact, but rather errors of law. That resulting from its failure to apply those criteria. It also failed to provide adequate reasons for the conclusions it arrived at.

59. In the case of Dr Spittaler, Ms Tagg contended that the Panel had entirely failed to address the error which it had unsuccessfully attempted to address in Dr Andrews’ appeal. The result on this appeal was that it failed to assess what lay in issue in respect of the medical dispute which had been referred to Dr Spittaler, that resulting in its incorrect conclusion that Ms Tagg had suffered 0% WPI for her psychological injury.

60. The reasons the Panel gave for this conclusion also did not explain why its inconsistent approach had been pursued. Nor were adequate reasons given for the result of its consideration of the applicable guidelines.

61. The insurer’s case was that the grounds Ms Tagg pursued did not raise genuine questions of law, but rather turned on the merits; that the applicable guidelines had been correctly applied by the Panel in respect of both appeals; and that adequate reasons had been given for the conclusions reached.

62. In reply, Ms Tagg contended that the Panel had failed to comply with the statutory formulae provided by the guidelines for the assessment of impairment and that what she pursued did not involve a challenge to the merits of the assessment, but concerned the errors of law into which the Panel had fallen.

Dr Andrews - The PIRS criteria

63. It was whether various categories used to assess behavioural consequences of psychiatric disorder had been correctly applied, specifically whether they should have been assessed at class 2 or 3, which was in issue in respect of Dr Andrews’ appeal.

64. Ms Tagg’s impairment had to be assessed by a method of rating specified in the guidelines, using class descriptors for six scales, which had regard to severity. Assessors also had to take account of the person’s cultural background, age, sex and cultural norms: Guideline 11.12.

65. The classes and applicable criteria were:

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.

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

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

Table 11.3: Psychiatric impairment rating scale – travel

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

Table 11.4: Psychiatric impairment rating scale – social functioning

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

Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5	Totally impaired: needs constant supervision and assistance within institutional setting.

Table 11.6: Psychiatric impairment rating scale – employability

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training.

The person is able to cope with the normal demands of the job.

Class 2

Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).

Class 3

Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).

Class 4

Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

Class 5

Totally impaired: Cannot work at all.

66. The Panel’s reasons for the conclusions it arrived at about these scales were given in a table:

PIRS Category			Class		Reason for Decision
Self-care and personal hygiene			2		Ms Tagg has no appetite and only eats 1 meal a day, and maintains a stable weight. She showers daily but needs a checklist. She cooks and does minimal shopping and household chores. From a psychological perspective, she is capable of independent living without regular support, and does not need prompting with her self-care. Her physical injuries and pain are the main impediments and are not assessable in the PIRS.
Social and recreational activities			2		She wants to participate in social and recreational activities but cannot do most of her usual recreational activities, due to her physical injuries and pain, which are not assessable. From a psychological perspective, she can tolerate small social and recreational activities, e.g. trips away with her husband, watching TV and Netflix regularly with her family, and sometimes playing musical instruments to her family, as these activities are within her physical capacity.
Travel			2		Ms Tagg avoids large shops and being away from home for too long. She is independent in travel locally.
Social functioning			2		Ms Tagg's relationship with her husband is good. They married after the subject accident. She does not contact her friends anymore, except one friend close by. The relationship with her general family is reasonable. She cares for her children, within her physical capacity.
Concentration, persistence and pace			3		She cannot study or read books, or engage in intellectually demanding tasks. Her impairment is moderate and stimulants help.
Employability			5		Ms Tagg has not worked since the fall. Her anxieties and concentration problems are significant and prevent her return to work.
Score										Median Class
2	2	2		2		3	5	=2
Aggregate Score Impairment				Total	%
+	+	+		+		+	16	9

Pre-existing injury

One-tenth

Treatment effects

There has been mild substantial elimination of impairment with treatment, and without stimulant medication her overall impairment would be greater.

1

Final WPI

9

67. It follows that the Panel made no reference in its reasons to the differences between the disputed classes and that adequate reasons were not given for how the Panel resolved what was in issue, by concluding that particular categories fell into class 2, rather than 3.

68. In its reasons the Panel referred to Ms Tagg having suffered physical injuries and pain. That was not in issue, Dr Anderson’s certificate that she had suffered 9% WPI being unchallenged. The conclusion that they were her “main impediments”, could only have resulted from a consideration of what Dr Anderson had concluded about the physical injuries he had to assess, given that the Panel had concluded that Ms Tagg had suffered 0% WPI from her traumatic brain injury.

69. The Panel made no reference to what Dr Anderson had observed about her brain injury or the seizures Ms Tagg began suffering after the fall, for which she continued to receive treatment. It thus appears that they played no part in its review.

70. Nor did the Panel give adequate reasons for what it concluded about the disputed categories, that requiring it to disclose its path of reasoning. This can be explained by reference to two of the categories, self-care and personal hygiene and social and recreational activities.

71. For self-care and personal hygiene, class 2 dealt with mild impairment, the specified descriptors being “able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food”.

72. Class 3 dealt with moderate impairment, the specified descriptors being “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.”

73. The Panel concluded that Ms Tagg had only a mild impairment, explaining:

“Ms Tagg has no appetite and only eats 1 meal a day, and maintains a stable weight. She showers daily but needs a checklist. She cooks and does minimal shopping and household chores.

From a psychological perspective, she is capable of independent living without regular support, and does not need prompting with her self-care.

Her physical injuries and pain are the main impediments and are not assessable in the PIRS.”

74. Eating only one meal a day, plainly does not involve sometimes missing a meal or relying on take-away food. Eating once a day, logically, involves not only frequently missing meals, but missing them every day.

75. What it was about Ms Tagg’s physical impairments which led the Panel to conclude that they, rather than her psychological impairment, were mainly responsible for her eating only once a day, was not revealed. Nor was the result, its conclusion that the impairment caused by her psychological injury on her self care and personal hygiene was only mild, explained as it needed to be.

76. Needing a checklist to shower every day, does not appear to accord with not needing prompting for self-care. Nor does doing minimal household chores and cleaning accord with an ability to live independently. The path of reasoning that drove the conclusion that Ms Tagg was capable of independent living without regular support, was not disclosed.

77. While the reasons given by an Appeal Panel need not be extensive, they do have to engage with what is in issue and shed light on the path of reasoning which resulted in the resolution arrived at. That is absent here.

78. In the case of social and recreational activities, the class 2 criteria specified for mild impairment were “occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team)”. This has to be understood in the context of the class 1 criteria, “participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these”.

79. While the class 3 criteria for moderate impairment were ”rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”

80. The Panel’s explanation for its conclusions was:

“She wants to participate in social and recreational activities but cannot do most of her usual recreational activities, due to her physical injuries and pain, which are not assessable.

From a psychological perspective, she can tolerate small social and recreational activities, e.g. trips away with her husband, watching TV and Netflix regularly with her family, and sometimes playing musical instruments to her family, as these activities are within her physical capacity.”

81. The Panel did not explain how it concluded that Ms Tagg, who it found from a psychological perspective, could only tolerate small social and recreational activities and those she engaged in were limited to activities with her husband and family at home, such as watching TV and playing music, did occasionally go out to social activities that were age, sex and culturally appropriate, without a support person.

82. On the reasons which were given, Ms Tagg does not appear to engage in any such activities, let alone without a support person. It follows again, that the reasons given shed no light on the process of reasoning which led the Panel to its conclusion about the criteria specified for the social and recreational activities category.

83. It must thus be accepted that the Panel fell into legal error. That it applied the criteria to what it found is not apparent and it had to give more explanation than it did, of the path of reasoning that led it to its conclusions about the classes in dispute, given what governed that aspect of its decision making.

84. In the result, the case advanced for the insurer cannot be accepted. That the Panel fell into error of law and failed to give adequate reasons for its decisions, must be accepted.

Dr Spittaler - the Guidelines

85. Both Dr Spitaller and the Panel took the same view about how the relevant guideline operated. It provides:

“5.9    In assessing disturbances of mental status and integrative functioning; and emotional or behavioural disturbances; disturbances in the level of consciousness and awareness; disturbances of sleep and arousal function; and disorders of communication (AMA5 sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f;pp 309–311 and 317–327), the assessor should make ratings based on clinical assessment and the results of neuropsychometric testing, where available.

For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact.

Clinical assessment must include at least one of the following:

• significant medically verified abnormalities in the Glasgow Coma Scale score

• significant medically verified duration of post-traumatic amnesia

• significant intracranial pathology on CT scan or MRI.

Neuropsychological testing should be conducted by a registered clinical neuropsychologist who is a member, or is eligible for membership, of the Australian Psychological Society’s College of Clinical Neuropsychology. Neuropsychological test data is to be considered in the context of the overall clinical history, examination and radiological findings, and not in isolation.”

86. The Panel also had regard to the GCS scores on Ms Tagg’s testing in hospital which was at worst 14/15 and 15/15, normal, before her release; the Hospital’s failure to conduct the amnesia test which had been ordered; and her normal brain scans. It thus concluded that her whole person impairment from the brain injury it found she had suffered, was 0%.

87. It found that Ms Tagg had suffered a brain injury. That was consistent not only with her fall, but the post concussive syndrome she had been diagnosed to have suffered afterwards, her ongoing amnesia and her continuing seizures, none of which she had suffered before the fall. But despite Dr Andrews’ observations about her brain injury, because of the view the Panel, like Dr Spittaler took of guideline 5.9, it concluded that she had not suffered any impairment, despite these ongoing consequences of her fall.

88. It must be accepted that this approach involved a misreading of that guideline. Part 5 of the guidelines deals with the nervous system. It specifies that AMA 5 Chapter 13 applies to the permanent impairment of the nervous system, subject to the modifications made in Part 5. Guideline 5.9 appears under the heading “Specific Interpretation of AMA 5”.

89. Properly read, guideline 5.9 is concerned only with assessment of the specified disturbances which are dealt with in the identified sections of AMA 5. They are:

13.3a – disturbances in level of consciousness and awareness

13.3c- arousal and sleep disorders

13.3d- mental status, cognition and highest integrative function

13.3e- communication impairments: dysphasia and aphasia

13.3f – emotional or behavioural impairments.

90. Guideline 5.9 does not amend cl 13.3b of AMA 5. It deals with the assessment of episodic neurological impairments that are persistent and permanent. They include minor seizures which may alter awareness or consciousness, interrupt daytime activities and result in an inability to perform activities of daily living. It is observed at cl 13.3b that they “may interfere significantly with daily activities”.

91. The Panel failed to refer to cl 13.3b, or to consider evidence which it had before it about Ms Tagg continuing to suffer such impairments. That not only the history she had consistently given, but also medical reports which identified that since the fall she had been suffering non-epileptic dissociative seizures, a functional neurological disorder other medical practitioners considered likely to have developed as a direct consequence of the trauma she had suffered was not referred to.

92. It follows that even accepting that what was measured while Ms Tagg was in hospital after the fall did not establish that she had a significant abnormality in her GCS score, that her brain scans were normal and that the directed amnesia testing was not undertaken, it may not be accepted that there was no evidence of brain impairment resulting from her brain injury.

93. So far as post traumatic amnesia was concerned, on the evidence Ms Tagg was still suffering amnesia. The Panel’s conclusions about her disturbances of mental status and integrative functioning; emotional or behavioural disturbances; disturbances in the level of her consciousness and awareness under cl 5.9 could thus not depend on the amnesia test which had been ordered while she was in hospital, not having been administered.

94. It not only had to consider her reported ongoing amnesia and that her presentation in hospital on the day of her fall had resulted in a decision to order that test, but also whether other medical evidence it had to consider supported the conclusion that there was “significant medically verified duration of post-traumatic amnesia”. If it did, the resulting impairment had to be assessed. If it did not, the reasons for that conclusion had to be explained.

95. The Panel also had to consider the evidence which established that Ms Tagg was still suffering seizures, which Dr Anderson and other medical specialists who had examined Ms Tagg had considered. In determining whether this evidenced that she had suffered an impairment as the result of her brain injury, cl 13.3b of AMA 5 had to be applied.

96. It must be accepted that the Panel, which adopted Dr Spittaler’s reasons as I have explained, also failed to consider such evidence, as the applicable guidelines required.

97. In the result it must be accepted that the Panel erred in law, by failing to correct the errors into which Dr Spittaler had fallen, as it had to.

Costs

98. The usual orders under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42.1. That is an order that the insurer bear Ms Tagg’s costs, as agreed or assessed. Unless the parties approach to be heard within 7 days, that will be the Court’s order.

Orders

99. For these reasons I order:

1. The Appeal Panel’s decision is quashed.

2. The matter is referred back to the President of the Personal Injury Commission to be dealt with according to law by a differently constituted Appeal Panel.

3. Unless the parties approach to be heard within 7 days, the insurer is to bear Ms Tagg’s costs, as agreed or assessed.

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Decision last updated: 15 December 2023