Scott v Ivy Contractors Pty Ltd

1. [1]

   In January 2019 Mr Scott was injured while working for Ivy Contractors Pty Ltd as he was descending a ladder carrying a heavy piece of equipment down from a roof. He suffered shock and pain and later pursued treatment for his physical injuries. He also began suffering symptoms consistent with having suffered a psychological injury, for which he was also treated. Mr Scott made a claim for compensation under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). He later pursued a medical dispute about his psychiatric injury, the extent of which could not be agreed.

2. [2]

   Mr Scott was assessed by the psychiatrist Dr Young, who concluded he had suffered a 7% whole person impairment from his psychological injury. In arriving at his conclusion, the assessor made specific allowances for the contribution of chronic pain Mr Scott was suffering, taking them into account in his assessment of three categories of the Psychiatric Injury Rating Scale which had to be considered in the assessment of the impairment which Mr Scott’s psychiatric injury had caused.

3. [3]

   The PIRS scale uses class descriptors, ranging from 1 to 5, in accordance with severity. They are used in the assessment of factors such as the injured person’s activities of daily living, employability, and functional impairment in relation to matters such as self-care and personal hygiene.

4. [4]

   Mr Scott appealed his assessment on two of the four grounds available under subs 327(3) of the Act. Namely, that the assessment was made on the basis of incorrect criteria and the medical assessment certificate contained a demonstrable error. The result was that while Mr Scott’s appeal was to be by way of review of the challenged medical assessment, the appeal was confined to the two grounds he had advanced: subs 328(2) explained in Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304 at [22]-[35].

5. [5]

   The particular issues pursued on Mr Scott’s appeal were identified in the written submissions which accompanied his application for referral to an appeal panel, where he claimed that he had suffered 15% impairment. Ivy disputed this in its written submissions. Neither party sought to address the panel orally. Mr Scott also sought to be re-examined by the panel for the purpose of his appeal: subs 328(2A).

6. [6]

   The statutory scheme permitted the President to refer him for further assessment, as an alternative to his appeal: s 329. But the appeal was referred to the appeal panel, which conducted a preliminary review and determined that the medical assessor had erred “in the manner of his assessment of whole person impairment”.

7. [7]

   The appeal panel also decided that one of its members, Professor Glozier, should undertake another examination of Mr Scott. The panel later took his report into account. It concluded that the challenged certificate should be set aside, and a new certificate issued, having concluded that Mr Scott had suffered 8% whole person impairment as the result of his psychological injury, for reasons which it explained.

8. [8]

   Mr Scott now seeks judicial review of the appeal panel’s decision, contending that it failed to adhere to its statutory task, which confined its consideration to the grounds he had pursued on appeal, rather than permitting it to undertake the assessment of his injury afresh, as it did. He also contends that correction of the errors which the appeal panel necessarily accepted, should have led it to the conclusion that he had suffered 22% whole person impairment, applying the applicable statutory criteria.

9. [9]

   That was disputed and Mr Scott accepted that his now claimed 22% impairment had not been raised before the appeal panel.

10. [10]

    But still the result of the appeal panel’s approach, Mr Scott contends, was jurisdictional error, the panel having misconstrued its statutory power under s 328, failing to exercise its jurisdiction and taking into account irrelevant considerations: Aquilina v Transport for NSW [2022] NSWSC 1310 at [8]-[10], applying Queanbeyan Racing Club Limited. It had also failed to give adequate reasons for its decision. This was also disputed.

11. [11]

    The President of the Personal Injury Commission and the members of the appeal panel have filed submitting appearances.

Issues

1. [12]

   There was no issue that:

   1. (1)

      Mr Scott had sustained a primary psychological injury as the result of his accident at work;

   2. (2)

      by his original application Mr Scott had pursued the parties’ dispute over his claim for compensation for the permanent impairment which had resulted from that injury. That was the dispute which had been referred to the medical assessor for assessment;

   3. (3)

      that assessment had to be undertaken in accordance with the applicable State Insurance Regulatory Authority’s NSW workers compensation guidelines for the evaluation of permanent impairment (4th ed, 2021). They require, in the case of psychological injury, that the impairment rating be based on a psychiatric diagnosis and that if pain is present as the result of an organic impairment, it be assessed as part of the organic condition and not as part of the assessment of impairment relating to the psychiatric condition: cll 11.4 and 11.5 of the guidelines; and

   4. (4)

      the appeal panel was confined to a consideration of the grounds of appeal Mr Scott advanced, subs 327(3) specifying the only four grounds available: Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [61]. He advanced error-based grounds specified in subss 327(c) and (d).

2. [13]

   In issue between the parties is whether the appeal panel:

Did the panel go beyond its statutory task and fail to adhere to the applicable guidelines?

1. [14]

   I am satisfied that these errors were established.

2. [15]

   Mr Scott advanced his case by reference to a table, which explained why he contended that the appeal panel should have arrived at the conclusion that he had suffered 22% impairment, had it confined itself to its statutory task of dealing with the errors which the assessor had made in impermissibly taking into account and making deductions for pain he was suffering. The third column of this table reflects the assessor’s conclusions, before the deductions he made for pain:

3. [16]

   Mr Scott accepted that this was not how he had advanced his case before the appeal panel. Then, he had urged the panel to assess his impairment at 15%.

4. [17]

   On Ivy’s case the panel had correctly arrived at the conclusion that Mr Scott had suffered impairment of 8%. The case which he had advanced had not been confined to errors in relation to deductions for pain, but had also raised two other matters. The first, the assessor’s error in finding that he had suffered a secondary injury, neither he nor it having submitted that his impairment was the result of a secondary psychological condition, or he having suffered one. The other, the assessor’s failure to provide adequate reasons.

5. [18]

   Mr Scott had sought to be assessed again by the appeal panel. That was contended to have been necessary in order for it to consider the extent to which the challenged assessment had been infected by the impact of pain and the deductions the assessor made for it.

6. [19]

   Ivy relied on Chen J’s observation in Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [65], that whether an appeal panel has misdirected itself, so as to be deflected from its statutory task, is context dependent. His Honour also observed [66] that where demonstrable error in the assessment performed by the medical assessor is advanced, a panel is not itself assessing impairment. Rather, it is “charged with determining whether the error alleged has been committed by the medical assessor and is of the requisite character (demonstrable error)”.

7. [20]

   Ivy contended that it followed that consideration needed to be given to the arguments advanced before the panel, in order to determine whether the panel had adhered to its statutory task, given the matters which Mr Scott had raised by his appeal. It followed that it was necessary for the panel to consider the extent to which the challenged assessment had been infected by the impact of pain. Further, that in considering the adequacy of the assessor’s reasons, it was necessary to consider the extent to which the reasoning had been exposed.

8. [21]

   Having found error, it was entirely appropriate for the panel to have examined Mr Scott again, as he requested. A mere disagreement with the level of error the appeal panel found as a result, could not establish the necessary error on which the Court’s jurisdiction depends.

9. [22]

   In his reasons the assessor outlined the history of Mr Scott’s accident and the onset of Mr Scott’s symptoms, including worsening pain and the treatment he pursued for his physical injuries and his continuing pain, as well as the later onset of his psychiatric injury and the treatment he pursued for it. The assessor also noted that his present symptoms included congoing chronic pain and that he had not physically examined Mr Scott. The assessor then considered the consistency of his symptoms and summarised his injuries and diagnosis to be:

10. [23]

    The assessor then turned to his evaluation of Mr Scott’s impairment, found to be 7% whole person impairment. Under the heading Reasons for Assessment, the assessor identified what his opinions and assessment rested on and gave:

11. [24]

    The assessor attached a worksheet to his reasons, which set out his actual calculations of Mr Scott’s impairment, applying the PIRS guidelines. The table provided:

12. [25]

    Contrary to the case which Ivy pressed on the appeal, while that explanation exposed the assessor’s path of reasoning, it necessarily established that he had wrongly concluded that Mr Scott had suffered a secondary psychiatric injury. Further, that he had impermissibly taken into account the chronic pain he found had followed Mr Scott’s physical injury and which he was still suffering, as part of his assessment of the impairment which resulted from his psychiatric condition.

13. [26]

    The grounds identified in Mr Scott’s submissions were:

14. [27]

    In its written submissions Ivy conceded no error, but relied on s 65A of the Workers Compensation Act 1987 (NSW). It precludes compensation for impairment resulting from a secondary psychological injury; requires that in assessing impairment from a primary psychological injury no regard be had to impairment or symptoms resulting from a secondary psychological injury; and that compensation is not payable unless the impairment from a primary psychological injury is at, or exceeds 15%. Further:

15. [28]

    Ivy also contended that cl 11.6 of the guidelines, which required a rationale for the ratings based on psychiatric symptoms had been complied with, despite cl 11.5 also precluding pain forming part of the assessment. The assessor had had proper regard to the behavioural consequences of Mr Scott’s psychiatric disorder. Further, reading his reasons as a whole established that the assessor had used his clinical judgment to appropriately rate Mr Scott’s impairment.

16. [29]

    In its statement of reasons, the appeal panel began with the background to the application to the appeal and the result of its preliminary review, that Mr Scott should undergo a further examination because “the MA erred in the manner of his assessment of whole person impairment”: at [7]. It then referred briefly to the evidence and the parties’ written submissions, noting the three matters which Mr Scott pursued, failing to accept the nature of his primary injury, erring by attempting to make a deduction for effects of pain and failing to provide adequate reasons. It then turned to explain its findings and reasons.

17. [30]

    They began with the obligation to give reasons and an examination of the assessor’s reasons, from which it quoted extensively. The appeal panel then explained the submissions Mr Scott had advanced, in further detail. It then said that “The Panel agreed with the thrust of the appellant’s submissions and accordingly arranged for the appellant to be re-examined”: at [25]. But its reasons give no explanation of why it had agreed with the case Mr Scott had so advanced.

18. [31]

    The panel then quoted Professor Glozier’s report about his findings on examining Mr Scott. It concluded with the Professor’s summary:

19. [32]

    The panel then immediately turned to its conclusions about the correct assessment of Mr Scott’s impairment:

20. [33]

    What was thereby explained accepted Mr Scott’s case that the assessor had wrongly taken account of the contribution of the pain he was suffering, in the assessment of the impairment resulting from his psychological injury. Necessarily the assessor’s approach impermissibly took account of that pain. That was because, having formed a view about the nature of Mr Scott’s impairment, he took his view about the contribution of pain into account in arriving at conclusions about severity in the case of some of the categories he had to consider, by making a deduction for pain.

21. [34]

    The appeal panel’s task was confined by the grounds of appeal Mr Scott had advanced. Having had Professor Glozier examine Mr Scott, it then took his report into account in arriving at its own conclusions about the disputed categories. It explained its approach to be that “Any contribution due to pain or physical limitations arising from his physical injury have been excluded”.

22. [35]

    But necessarily, in order to exclude contributions made by physical limitations and pain when assessing the severity of Mr Scott’s impairments, the appeal panel had to come to a view about what their contributions were. Under this statutory scheme, however, that was not for the panel to determine.

23. [36]

    The extent of any contribution to the impairment Mr Scott suffered after his fall, as the result of physical injury or pain, could either be agreed or in the event of dispute, had to be assessed by a different medical assessor. He was only entitled to receive compensation in respect of impairment resulting from his psychological injuries without taking into account physical injury or pain, but it was not for the appeal panel to determine what level of contribution either had made to his level of impairment.

24. [37]

    The appeal panel observed that in summary, the Professor had agreed with the assessor’s assessments in all categories except for employability and adopted his conclusions. By this it was referring to the conclusions the assessor had reached after deduction for pain.

25. [38]

    The appeal panel arrived at a class 5 rating for the employability category, having first excluded the contributions it considered physical limitations and pain had made. The assessor had also arrived at a class 5 rating, he having taken pain into account and arriving at a rating of 3, by having regard to the contribution he considered pain had made to Mr Scott’s impairment. It was his approach of making a deduction to exclude this contribution of pain, which had led to the panel’s acceptance of error having been made.

26. [39]

    But in arriving at its class 5 rating, the appeal panel had excluded the contribution it considered that both physical injury and pain had made to his impairment. It follows that the panel disagreed with the assessor’s view about the extent of the contribution of pain to Mr Scott’s impairment.

27. [40]

    By way of contrast, the assessor concluded that the class ratings for social and recreational activities, social functioning and concentration, persistence and pace was in each case 3. But he reduced each of them to 2, in order to take pain into account. The appeal panel concluded that each of these should be assessed at 2, it having also first excluded the contributions it considered physical limitations and pain had made.

28. [41]

    While they disagreed about the impact of pain, it follows that the panel’s approach did not address the assessor’s error.

29. [42]

    On the appeal there had been no challenge to the assessor’s initial class ratings, which Ivy had also accepted. What was in issue between the parties was whether it was open to the assessor to have reduced those ratings as he did, in order to take into account his view of the contribution which pain had made. That was accepted by Ivy, but challenged by Mr Scott.

30. [43]

    The appeal panel concluded that the assessor’s approach was not available. But in arriving at its own conclusions the panel itself took into account the view it reached about the contributions which both physical limitations and pain had made to Mr Scott’s impairment. That also, necessarily, took into account the contribution of pain, a matter not for this panel to determine under the statutory scheme.

31. [44]

    In so approaching what the parties had joined issue over, I am satisfied that the appeal panel erred. Firstly, in not confining itself, as it needed to, to the correction of the assessor’s accepted error. That is, in taking into account not only its view that pain had contributed to Mr Scott’s impairment, but also its conclusions about the impact of that pain and his physical injury in arriving at its conclusions about various of the class ratings, by taking into account that impact.

32. [45]

    Those ratings are concerned with identifying the severity of the adverse consequences of an injury which has been suffered. In the case of psychological injury, conclusions about those consequences and the resulting impairment suffered must all be reached without consideration of any contribution which it is considered pain may or may not have made.

33. [46]

    That is of obvious importance in a statutory scheme which not only does not provide for compensation for impairment which results from both physical and primary psychological injuries, but also envisages that the question of which injury results in greater compensation may be agreed by the parties. In the event of disagreement, the medical disputes about the consequences of physical injury and pain must be resolved in accordance with the requirements of the statutory scheme, not by assessors and appeal panels dealing with the consequences of psychological injury.

34. [47]

    It follows that in this case, given the grounds Mr Scott advanced and the errors found, the appeal panel was not empowered to undertake the assessment of Mr Scott’s impairment afresh as it did.

35. [48]

    The appeal panel either had to confirm or revoke his certificate and issue a new one: subs 328(5) of the Workplace Injury Management and Workers Compensation Act. The panel’s decision to set aside the certificate could not expand the scope of its function: Queanbeyan Racing Club Limited at [29]-[33]. It was confined to the correction of the errors found and could not simply undertake a fresh assessment of Mr Scott’s whole person impairment: at [33].

36. [49]

    Given the assessor’s reasons, on the appeal there could be no question about either how he had arrived at the various class ratings on the materials he had to consider, or why he departed from some of them, because of his views about pain contribution. There was no appeal by Ivy from the assessor’s conclusions about the various ratings arrived at, its case being that the deductions so made were available. Nor were the original ratings challenged by Mr Scott. It was the deductions for pain which he successfully challenged as involving error.

37. [50]

    It follows from the particular circumstances of this case, that the correction which needed to be made by the appeal panel did not permit it to embark on its own consideration of what contribution Mr Scott’s pain had made to his impairment.

38. [51]

    In these proceedings there was no issue about the calculation of the whole person impairment which would result under this statutory scheme from the assessor’s conclusions, had deductions for pain not been made as they were. But that was not what the appeal panel was asked to undertake. Instead, Mr Scott pursued a claim that he had suffered 15% impairment. That was rejected by the panel, it having come to its own views about the contributions of physical injury and pain, Professor Glozier having examined Mr Scott.

39. [52]

    In so approaching its task the appeal panel also erred.

The reasons were inadequate

1. [53]

   There was no issue between the parties about the oft discussed requirement which falls on an appeal panel to give adequate reasons for the decision which it arrives at, disclosing the actual path of reasoning by which its opinions on the medical question referred to it were reached, in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [54]-[55]. But such reasons must not be examined with an eye keenly attuned to error: McGinn v Ashfield Council [2012] NSWCA 238 at [17].

2. [54]

   Ivy relied on Basten J’s recent discussion of these requirements in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [43]-[45], but it is not necessary to refer to this.

3. [55]

   I have already explained the reasons which the appeal panel gave and how they failed to explain why it accepted the case which Mr Scott had pursued. It also did not explain why Ivy’s case that the assessor had not erred could not be accepted, but it was not obliged to explain an opinion that it did not form: Wingfoot at [56].

4. [56]

   What the appeal panel did have to do was explain why it concluded that the assessor had erred in taking into account his view of what contribution pain had made to Mr Scott’s impairment. Had it done so, it may not have fallen into the further error of not explaining, as it also needed to, why it considered that this error having been established, it was open to it to assess the level of his impairment afresh, taking into account the view it formed about the contribution of his physical injuries and pain to his impairment, in order to exclude that contribution.

5. [57]

   The appeal panel concluded that Professor Glozier should examine Mr Scott, as Mr Scott had sought in his application. That was a matter for the panel’s professional judgment. But given the errors which he advanced on his appeal, why the panel acceded to that application is difficult to see.

6. [58]

   In these proceedings it was accepted that there had been no reason for Mr Scott to seek such a further assessment, given his appeal grounds. But that was not the position before the appeal panel, despite there being no issue about the evidence on which the assessor had based his conclusions, or the severity ratings he had arrived at, other than in respect of the way the assessor had taken into account the contribution of pain. Nor was there any suggestion of any need to revisit Mr Scott’s current functioning, as there might have been for example, if deterioration or fresh evidence had been advanced.

7. [59]

   Despite the application for further examination having been made and granted by the appeal panel, that also did not alter its statutory confinement to dealing with the grounds of appeal which Mr Scott had advanced. Nor did that affect its obligation to expose the path of reasoning by which it reached its conclusions about what was in issue. Had it done so, it may have avoided the error into which it also fell in taking account as it did of its views about the contributions of pain and physical injury to Mr Scott’s impairment.

8. [60]

   In the result it must be accepted that this ground of appeal was also established

Did the Panel fail to engage with Mr Scott’s case?

1. [61]

   It is not necessary to deal further with arguments advanced about this ground, which have already been touched on.

2. [62]

   Before the appeal panel Mr Scott simply did not pursue a case that the correct assessment of his level of impairment was 22% and it cannot fairly be criticised for not having dealt with such a claim.

Costs

1. [63]

   There was no issue between the parties that in this case the usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) would be made. Given the conclusions I have reached that is an order that Ivy bear Mr Scott’s costs, as agreed or assessed.

Orders

1. [64]

   For the reasons given I am satisfied that the appeal panel’s certificate and reasons must be set aside.

2. [65]

   In Aquilina concessions of relevant error led to an agreement that the appeal panel should have concluded in that case, that whole person impairment of at least 15% had been suffered, which persuaded Brereton JA that a basis there existed for orders under subs 69(3) of the Supreme Court Act 1970 (NSW) to be made. What was ordered was that the challenged certificate be quashed and that the panel issue another certificate certifying that the degree of permanent impairment resulting from the plaintiff’s injuries was 15%.

3. [66]

   Similar orders were sought in this case, but in respect of 22% impairment, about which no such concessions were made by Ivy, which opposed such orders being made.

4. [67]

   Here there is the added complication, on which Ivy relied, that the order which was pursued before the appeal panel was in respect of only 15% claimed impairment. An order reflecting 22% impairment was never advanced before the panel.

5. [68]

   While I accept that this may not preclude an order under subs 69(3)(b) of the Supreme Court Act, if it is determined that as a matter of law only one determination should have been made, I am not persuaded that this degree of satisfaction is available. Even though it must be accepted that Ivy has had the opportunity to meet the different case advanced for Mr Scott in these proceedings.

6. [69]

   Had such an order been pursued before the appeal panel, that would have disclosed the argument that the assessor’s reasons had actually reflected a conclusion that Mr Scott had suffered 22% impairment. But it was not. Nor were any submissions advanced which could have led the panel or Ivy to understand that this was actually Mr Scott’s case, let alone how he had arrived at that conclusion, given the requirements of the statutory scheme now relied on and the conclusions which the assessor had reached.

7. [70]

   In the result I am not persuaded that such an order should be made in this case.

8. [71]

   It was agreed that if such an order was not made, the proper order would be to set aside the appeal panel’s certificate and reason and refer the matter back to the President of the Commission to deal with according to law. Given the President’s various functions under this scheme, I agree.

9. [72]

   For these reasons I order that:

   1. (1)

      The appeal panel’s decision is set aside;

   2. (2)

      The matter is referred back to the President of the Commission to be dealt with according to law; and

   3. (3)

      Ivy Contractors Pty Ltd is to bear Mr Scott’s costs, as agreed or assessed.