Henderson v Canterbury Hurlstone Park RSL Club Ltd

1. [1]

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

2. [2]

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

3. [3]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

4. [4]

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

5. [5]

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

6. [6]

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

7. [7]

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

8. [8]

   Judicial grounds 4 to 6 are:

9. [9]

   Judicial grounds 7 and 10 are:

10. [10]

    Judicial grounds 11 and 12 are:

11. [11]

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

12. [12]

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

13. [13]

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

14. [14]

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

15. [15]

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

16. [16]

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

17. [17]

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

18. [18]

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

19. [19]

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

20. [20]

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

21. [21]

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

22. [22]

    Clause 11.12 of the Guidelines provides:

Clause 1.32 of the Guidelines

1. [23]

   Clause 1.32 of the Guidelines provides as follows:

2. [24]

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

3. [25]

   In relation to clause 1.32, the Appeal Panel stated:

4. [26]

   Judicial ground of review 11:

5. [27]

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

6. [28]

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

7. [29]

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

8. [30]

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

9. [31]

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

10. [32]

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

11. [33]

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

12. [34]

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

13. [35]

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

14. [36]

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

15. [37]

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

16. [38]

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

17. [39]

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

18. [40]

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

19. [41]

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

20. [42]

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

21. [43]

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

22. [44]

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

23. [45]

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

24. [46]

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

Judicial ground 12 – procedural fairness

1. [47]

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

2. [48]

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

3. [49]

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

4. [50]

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

5. [51]

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

6. [52]

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

7. [53]

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

8. [54]

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

Failure to provide adequate reasons.

1. [55]

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

2. [56]

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

3. [57]

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

4. [58]

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

5. [59]

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

6. [60]

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

7. [61]

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

8. [62]

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

9. [63]

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

10. [64]

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

11. [65]

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

12. [66]

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

13. [67]

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

14. [68]

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

15. [69]

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

16. [70]

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

Judicial Ground 2

1. [71]

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

2. [72]

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

3. [73]

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

4. [74]

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

5. [75]

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

6. [76]

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

7. [77]

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

8. [78]

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

9. [79]

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

10. [80]

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

11. [81]

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

12. [82]

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

13. [83]

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

14. [84]

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

15. [85]

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

16. [86]

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

17. [87]

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

18. [88]

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

19. [89]

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

20. [90]

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

21. [91]

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

22. [92]

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

23. [93]

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

24. [94]

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

25. [95]

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

26. [96]

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

27. [97]

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

28. [98]

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

29. [99]

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

30. [100]

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

31. [101]

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

32. [102]

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

33. [103]

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

34. [104]

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

35. [105]

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

36. [106]

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

37. [107]

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

38. [108]

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

39. [109]

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

40. [110]

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

41. [111]

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

42. [112]

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

43. [113]

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

44. [114]

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

45. [115]

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

46. [116]

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

47. [117]

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

48. [118]

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

    1. (1)

       A failure to engage with submissions (paragraph 4);

    2. (2)

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

    3. (3)

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

49. [119]

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

50. [120]

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

51. [121]

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

52. [122]

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

53. [123]

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

54. [124]

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

55. [125]

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

56. [126]

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

57. [127]

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

58. [128]

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

59. [129]

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

60. [130]

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

61. [131]

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

62. [132]

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

63. [133]

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

64. [134]

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

65. [135]

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

Approach to PIRS categories

1. [136]

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

2. [137]

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

3. [138]

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

4. [139]

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

5. [140]

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

6. [141]

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

7. [142]

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

8. [143]

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

9. [144]

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

10. [145]

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

    1. (1)

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

    2. (2)

       Similarly in relation to social functioning (paragraph 8);

    3. (3)

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

    4. (4)

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

11. [146]

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

12. [147]

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

13. [148]

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

14. [149]

    The employer submitted that no error as alleged occurred.

15. [150]

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

16. [151]

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

17. [152]

    Paragraph [35] of the Appeal Panel decision reads:

18. [153]

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

19. [154]

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

20. [155]

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

21. [156]

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

22. [157]

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

23. [158]

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

    1. (1)

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

    2. (2)

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

    3. (3)

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

    4. (4)

       Each party will bear their own costs.