Espana v Architectural Projects Pty Ltd

1. [1]

   On 21 August 2023, Frank Espana (“the plaintiff”) commenced proceedings against Architectural Projects Pty Ltd (“the Employer”), the President of the Personal Injury Commission NSW and the individuals constituting an Appeal Panel, seeking judicial review of a decision of the Appeal Panel dated 22 May 2023.

2. [2]

   The President of the Personal Injury Commission and the members of the Appeal Panel filed submitting appearances and took no part in the proceedings.

3. [3]

   The Employer opposed the relief sought in the Summons.

Factual Background

1. [4]

   In or around February 2021, the Plaintiff sustained psychological injury in the course of his employment as an architect with the Employer. He has been certified as totally unfit for work and is in receipt of compensation by way of weekly benefits pursuant to the provisions of the Workers Compensation Act 1987 (NSW) (“the 1987 Act”).

2. [5]

   On 23 February 2022, the Plaintiff made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act. He claimed that he had suffered a Whole Person Impairment (“WPI”) of 17%.

3. [6]

   The Employer disputed the extent of the plaintiff’s WPI and contended that any adverse impact did not exceed the necessary threshold for an award of permanent impairment compensation. That threshold figure is 15% WPI.

4. [7]

   In September 2022, the Plaintiff filed an application with the Personal Injury Commission for a resolution of the dispute about his claim for an award of permanent impairment compensation.

5. [8]

   The plaintiff was examined by an approved Medical Assessor (“the Assessor”), Dr Michael Hong, who, in a Medical Assessment Certificate (“MAC”), dated 10 February 2023, certified that the plaintiff’s WPI was 11%. The plaintiff was therefore below the necessary threshold to obtain compensation for permanent impairment.

6. [9]

   The plaintiff was dissatisfied with the conclusion of the Assessor and the contents of the MAC. Accordingly, on 24 February 2023, the plaintiff filed an appeal against the MAC. That appeal was considered by the appropriate delegate and referred to a Medical Appeal Panel (“the Appeal Panel”) whose members are the third defendants in these proceedings.

7. [10]

   On 22 May 2023, the Appeal Panel published its Statement of Reasons in which it confirmed the contents of the MAC, with the consequence that the assessment of the plaintiff’s WPI at 11% remained. A Certificate giving effect to that Appeal Panel’s determination was issued on 30 May 2023.

8. [11]

   On 21 August 2023, the plaintiff commenced these proceedings.

Summons

1. [12]

   In the Summons, the plaintiff claimed that this Court should set aside the decision of the Appeal Panel and remit the matter to the second defendant for a re-determination according to law.

2. [13]

   There were 10 grounds identified in the Summons, which are directed to various aspects of the Statement of Reasons of the Appeal Panel.

3. [14]

   However, it seems by reference to the submissions that were ultimately filed, the underlying bases upon which those grounds relied have been clarified and refined.

4. [15]

   In order to understand the submissions for the plaintiff, it is necessary to first set out, in some detail, the contents of the MAC and also the Statement of Reasons of the Appeal Panel.

Medical Assessment Certificate

1. [16]

   The Assessor noted that the date of injury of the plaintiff was 9 February 2021, and that he had been referred the plaintiff’s psychiatric or psychological disorder for the purpose of assessing the extent of the plaintiff’s WPI. He recorded that he examined the plaintiff on 24 January 2023.

2. [17]

   The Assessor noted the plaintiff’s present symptoms to be:

3. [18]

   The Assessor noted that the plaintiff’s father lived overseas and that he had a sister in Newcastle. He reported that he had previously had long term partners, the last of whom was in 2012.

4. [19]

   Under the heading of “Social Activities/ADL [Activities of Daily Living]”, the Assessor recorded:

5. [20]

   The Assessor undertook a full psychiatric assessment even though the consultation was via AVL and recorded this:

6. [21]

   That psychiatric assessment was noted to have taken 60 minutes.

7. [22]

   A cognitive assessment was also undertaken with the results of that process being noted.

8. [23]

   The Assessor summarised the plaintiff’s overall presentation in this way:

9. [24]

   As he was required to do, the Assessor noted his ratings by reference to the Psychiatric Impairment Rating Scale (“PIRS”). Relevantly, under the category “Social and Recreational Activities”, a score of 3 (moderate impairment) was assessed with these comments:

10. [25]

    With respect to the scale of “Social Functioning”, the Assessor rated the plaintiff as 2 (mild impairment), providing this description:

11. [26]

    So far as the scale for “Concentration, Persistence and Pace” is concerned, the Assessor again rated the plaintiff as 2, giving this description:

12. [27]

    Ultimately, the Assessor arrived at a total aggregate impairment score of 16 which, when added to the effects of treatment, converted to a WPI of 11%.

13. [28]

    As required by the legislation, in addition to the matters to which I have referred, the Assessor set out his reasons for that assessment.

14. [29]

    He referred to the report of Dr Ashwinder Anand of 3 May 2022, which he summarised. He noted that Dr Anand assessed the plaintiff as being a total of 9% WPI - being 8% WPI and 1% for treatment effects.

15. [30]

    He noted what the plaintiff’s statement said. He referred to the report of Professor Gordon Davies of 11 February 2022, and in particular noted that the plaintiff’s presentation to Professor Davies, which was described as “… voluble and hyperactive, restless and at times incoherent, and gave a disorganised history” was very different to the way in which the plaintiff presented to him during the assessment which he undertook. It is clear that this difference in presentation was one factor which explained the variation in the WPI arrived at by the Assessor of 11%, and that arrived at by Professor Davies of 17%.

Referral to Appeal Panel

1. [31]

   As earlier noted, a delegate of the President of the Personal Injury Commission considered the appeal lodged by the plaintiff against the decision of the Assessor. She also considered the Employer’s response. She concluded in this way:

Decision of the Appeal Panel

1. [32]

   The Appeal Panel gave its decision on 22 May 2023, and set out its reasons in writing for that decision. In short, it concluded that the MAC issued on 10 February 2023 should be confirmed.

2. [33]

   The Appeal Panel, having considered the matter at a preliminary stage, concluded that it was not necessary for them to re-examine the plaintiff. No complaint was made about that decision.

3. [34]

   The Appeal Panel also correctly noted that the assessment of permanent impairment was conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (“the Guidelines”) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (“AMA5”).

4. [35]

   It is convenient to set out here the contents of the PIRS which are contained in Chapter 11 of the Guidelines insofar as they are relevant to the Reasons of the Appeal Panel, and as they relate to the arguments put before this Court.

5. [36]

   Two separate scales of the six contained under the PIRS were in issue. Table 11.4: Social Functioning, and Table 11.5: Concentration, Persistence and Pace. The first, being Table 11.4 provides as follows with respect to social functioning:

6. [37]

   The second scale which was the subject of submission was Table 11.5: Concentration, Persistence and Pace, which provides the following:

7. [38]

   The Appeal Panel noted that the appeal which it was conducting was to be undertaken by way of review of the original medical assessment, but that that review was limited to the grounds of appeal on which the appeal was made.

8. [39]

   The plaintiff contended before the Appeal Panel, in short, that the Assessor had erred on the Table 11.4: Social Functioning scale by assessing the plaintiff as having a mild disability (Class 2) as opposed to a moderate disability (Class 3). With respect to the Table 11.5: Concentration, Persistence and Pace scale, the plaintiff contended that the Assessor had similarly erred by assessing the impairment as being a Class 2 mild impairment level rather than a Class 3 moderate impairment level.

9. [40]

   In the Appeal Panel’s reasons, having set out the submissions made by the employer with respect to the Table 11.4 scale, the Appeal Panel noted the descriptors and recorded its reasons in the following terms:

10. [41]

    The Appeal Panel’s reasons with respect to the Table 11.5 scale for Concentration, Persistence and Pace were somewhat longer. They included:

11. [42]

    As earlier noted, the Appeal Panel confirmed the MAC, thereby dismissing the plaintiff’s challenge to it.

Relevant Legal Principles

1. [43]

   In Ballas v Department of Education (2020) 102 NSWLR 86; [2020] NSWCA 86 (“Ballas”), in a joint judgment of Bell P and Payne JA (with which Emmett AJA agreed), their Honours said:

2. [44]

   Further, in Ballas, the joint judgment discussed questions relating to the correct use and application of the PIRS scales. Their Honours said:

3. [45]

   It is necessary to bear in mind that Ballas involved a challenge to the decision of a Delegate who had declined to refer an appeal from the decision of a Medical Assessor to a Medical Appeal Panel.

4. [46]

   The judgment in Ballas was considered by Basten AJA in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929. This was a case which involved judicial review of a decision of an Appeal Panel, rather than the Delegate which was the position in Ballas. Basten AJA said in:

5. [47]

   At [64], Basten AJA also noted that the Guidelines entrusted the task of making evaluations of psychiatric impairment to a psychiatrist who had received appropriate training in the assessment of an individual by reference to the PIRS methodology. I note that Clause 1.13 of the Guidelines requires medical specialists to “… exercise their clinical judgment in determining … impairment”, which must be measured in accordance with the PIRS when psychiatric impairment is claimed.

6. [48]

   Clause 11.6 of the Guidelines contains the following :

7. [49]

   Clause 11.12 of the Guidelines is also important, omitting the tables which fall underneath it, it reads:

8. [50]

   In Lancaster, the Appeal Panel had concluded that there was no error in the classifications of the Medical Assessor. At [68], Basten AJA said this:

9. [51]

   To a similar effect in the judgment of Beech-Jones J (as his Honour then was) in Insurance Australia Ltd v O’Shannessy [2015] NSWSC 1047 at [63], in which he adhered to what he had said in McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798 at [96]:

10. [52]

    His Honour noted this in [62] of Insurance Australia Group:

11. [53]

    On a judicial review application to this Court, a ground which raises error in the outcome of an evaluative decision, i.e., where there is varying evidence and material before a Medical Assessor or an Appeal Panel which needs to be assessed and evaluated by the application of (here) psychiatric expertise, faces an almost insurmountable hurdle. More often than not, properly understood, such a ground will be nothing more than an invitation for the Court to entertain what is, in substance, a merits review.

The Plaintiff’s Submissions

1. [54]

   The plaintiff submitted that there were a number of legal errors in the reasons of the Appeal Panel which were sufficient to warrant granting the relief claimed. The first of those errors was that the Appeal Panel, at paragraphs 28 to 29, took into account an irrelevant consideration.

2. [55]

   This jurisdictional error was described as the misapplication of the Class 2 and Class 3 descriptors of Social Functioning. The plaintiff submitted that these paragraphs demonstrated that the Appeal Panel regarded living alone and not requiring help from others as being relevant to the Social Functioning scale, whereas he submitted that the ability or lack of ability to live alone and look after oneself is specifically related to the Self Care and Personal Hygiene scale. He submitted that to the extent that Class 2 or 3 for Social Functioning refer to getting help from others or community services i.e., in the context of being separated from loved ones or else caring for children who may need help, it is irrelevant to have regard to the fact that a claimant may live alone and be able to care for themselves. He submitted that taking into account an irrelevant fact constituted jurisdictional error.

3. [56]

   The second legal error related to the rejection of the plaintiff’s submissions to the Appeal Panel that he was properly categorised as a Class 3 on the Social Functioning scale upon the basis of a failure by the Appeal Panel to bring an appropriate balance to their remarks about the extent of the plaintiff’s social functioning, to avoid selective quotation from the evidence, and to specifically address written submissions put by the plaintiff’s solicitor to the Appeal Panel.

4. [57]

   The plaintiff’s submission was that legal error was evident because the evidence referred to by the plaintiff in support of his appeal to the Appeal Panel was ignored and not engaged with, when the Appeal Panel expressed its conclusion (at [27]) that there was no evidence to support a Class 3 rating, and further that a Class 2 rating seemed entirely consistent with the evidence.

5. [58]

   Put differently, the plaintiff submitted to this Court that the Appeal Panel had:

6. [59]

   In pointing to the next legal error, the plaintiff’s submissions turned to the Concentration, Persistence and Pace scale. The submissions to this Court noted that the plaintiff had contended that upon the correct application of the relevant criteria on the PIRS, some of the PIRS assessment ought to have been assessed as Class 3 under the Guidelines.

7. [60]

   These submissions highlighted the high level of intellectual functioning of the plaintiff prior to his ceasing work due to psychiatric impairment. The plaintiff’s submissions pointed to the fact that prior to the onset of the major depressive disorder, the plaintiff was a highly functioning architect whose work would involve complex arithmetic and understanding complex instructions such as building plans, typing long documents and like activities.

8. [61]

   This was contrasted in the plaintiff’s submissions by the fact that the MAC noted that the plaintiff had difficulty doing mental arithmetic, that he had a poor memory and that he was unable to successfully design a new base for a glass table.

9. [62]

   The plaintiff noted that it had been submitted to the Appeal Panel that:

10. [63]

    The plaintiff submitted that in its reasons set out from paragraphs 39 to 49, set out at [41] above, the Appeal Panel had cited and relied on irrelevant considerations to support the conclusion that on this scale, the plaintiff was properly assessed as Class 2. The plaintiff pointed to the following as being irrelevant, namely, playing guitar, being creative, and doing yoga and weights. He submitted to this Court that those matters were not evidence of, nor relevant to, the assessment of the Concentration, Persistence and Pace scale.

11. [64]

    The plaintiff also pointed to the fact that the Appeal Panel took into account that the plaintiff had “engaged with MindSpot” and had done a course about anxiety and depression as evidence of an ability relevant to the Concentration, Persistence and Pace scale.

12. [65]

    Before this Court, the parties agreed that MindSpot was a free, national on‑line clinic for Australian adults troubled by symptoms of anxiety, stress, depression and low mood. The plaintiff pointed out that engagement with MindSpot was a form of treatment and was irrelevant as to a conclusion as to the level of functioning of a person on the Concentration, Persistence and Pace scale.

13. [66]

    In support of this claimed legal error, the plaintiff points to the fact that the Appeal Panel only quoted part of clause 1.6 of the Guidelines, and not its entirety, which gives a misleading impression of what that clause addresses.

14. [67]

    Finally, the plaintiff also submits that the Appeal Panel had failed to engage with the submissions of the plaintiff to it insofar as those submissions highlighted evidence supporting a conclusion of impairment at the level of Class 3.

15. [68]

    It is convenient to summarise the plaintiff’s contention as to jurisdictional error by using his own submissions which read:

Defendant’s Submissions

1. [69]

   Without doing a disservice to the defendant’s careful submissions, the employer contended that the Appeal Panel had come to factual conclusions which were open to it and had correctly applied those factual conclusions in making an assessment of the level of impairment of the plaintiff as between either Class 2 or Class 3 and with respect to both scales of Social Functioning and of Concentration, Persistence and Pace.

2. [70]

   In particular, the defendant takes issue with the plaintiff’s submissions that under Concentration, Persistence and Pace, the creative pursuits described, including the playing of a guitar, cannot be held by this Court to be irrelevant to an assessment of Concentration, Persistence and Pace. On the contrary, the defendant submits that the Appeal Panel was entitled to consider creative tasks as a relevant consideration and to take those into account. The defendant points to the fact that the Appeal Panel paid careful attention to the cognitive assessment of the plaintiff which was undertaken by the Medical Assessor and that he noted that the cognitive assessment did not reveal any significant impairment. The defendant submitted that this was an important factor, and an available factor, upon which the Appeal Panel was entitled to rely in considering the class to be allocated to the plaintiff.

3. [71]

   To the extent that the plaintiff complained in these proceedings that the Appeal Panel had not engaged with submissions made by it, the defendant submitted that, the Appeal Panel did engage with the plaintiff’s submissions but was simply not persuaded by them. The defendant points to the contents of paragraphs 24 and 36 of the Appeal Panel’s reasons. The defendant submitted that it is not the task of the Appeal Panel to engage with every submission before it from a plaintiff. Rather, it submitted that it was required to provide reasons sufficient to explain its preference for the conclusion which it reached.

4. [72]

   The defendant submitted that there was no jurisdictional or other legal error to be found.

Discernment

1. [73]

   On the hearing of a Summons seeking relief of the kind sought here, it is necessary to keep in mind that the Court is engaged in a process of judicial review, and that it is not engaged in a process of merit review. The reason why this Court does not undertake a merit review is in part, because, as clause 11.2 of the Guidelines indicates, the evaluation of psychiatric impairment is to be conducted by a psychiatrist “… who has undergone appropriate training in this assessment method”. This Court is not in any such position, nor does it have any appropriate training: Lancaster at [64].

2. [74]

   In addition, as explained in [51] to [52] above, the Court has not undertaken a merits review because the exercise of the functions of judicial review is not the equivalent of an appeal, nor is it a re‑hearing of any kind: cf s 75A Supreme Court Act 1970 and is limited to either a jurisdictional error or an error of law on the face of the record.

3. [75]

   Dealing first with the Scale for Social Functioning, I am not satisfied that the plaintiff has established error. In the first place, the expression used by the Appeal Panel that there was “no evidence to support a Class 3 rating” was said to be a suggestion that the Appeal Panel is making an error of law because the factual assessment does not support that conclusion. Upon a fair reading of the whole of the reasons of the Appeal Panel, the phrase which is criticised was not being used in a legal context. It is to be understood as an expression that there was no evidence sufficient to persuade the Appeal Panel that a Class 3 rating should be given. That is apparent from what follows immediately after the statement where the Appeal Panel goes on to discuss the facts which they identify as being relevant to the Class 2 rating. It is also confirmed in paragraph 35 of the Appeal Panel’s reasons where it says that a “Class 2 rating seems entirely consistent with the evidence”. The Reasons must be read as a whole.

4. [76]

   The second submission was that the Appeal Panel had taken into account a wholly irrelevant consideration by recording that the plaintiff lived alone in an apartment and had no partner or dependents. In assessing the extent to which the plaintiff’s Social Functioning is impaired, in my view a contextual fact relevant to that scale can be the domestic circumstances of a claimant. It can be a baseline against which the individual’s social functioning is assessed. In oral submissions, the plaintiff’s counsel conceded that facts about the plaintiff living alone, with no partner or dependents, was not irrelevant as a baseline condition. On the one hand, should a claimant live with a group of people, either family or friends, then the extent of social functioning within the family or with those friends would be relevant. It can be relevant to explain why any impairment of social functioning depends upon an assessment of the plaintiff’s interaction with people outside the home environment.

5. [77]

   I am not persuaded that this is an irrelevant factor which cannot be considered in assessing the position of the plaintiff under this scale. No jurisdictional error is demonstrated, nor is there any error on the face of the record.

6. [78]

   The argument about the fact that another scale, namely Self Care and Personal Hygiene, may also deal with the fact that a person is living alone as the context in which the capacity to self‑care and have good personal hygiene may have been impaired, does not mean that it is not a contextual fact for the assessment of impairment and according to another scale.

7. [79]

   Complaint was also made that there was a misdescription in paragraph 33 of the Appeal Panel’s reasons by describing the plaintiff’s annual trip to Byron Bay to stay with a friend as being “his only pre-injury significant social activity”. On balance, having regard to all of the material, I do not regard that as a misdescription. If it was a misdescription, it was a misdescription of a factual matter and is therefore not capable of constituting an error of law of a kind which amounts to jurisdictional error, or other relevant error.

8. [80]

   It is clear that the Appeal Panel did not agree with the plaintiff’s submissions that he ought properly to have been assessed as a Class 3 impairment. However, the Guidelines and the procedures entrust to the Appeal Panel and the Medical Assessor, the task of applying their expertise in assessing the psychiatric impairment on the requisite scale. The fact that the Appeal Panel disagreed with the plaintiff’s submissions is one of only two alternative options. They either agreed and increased the level of impairment to Class 3, or they disagreed with the submissions and agreed with the Medical Assessor to maintain the impairment level at Class 2.

9. [81]

   In making that assessment, the Appeal Panel is not required to discuss every argument put before it, nor is it required to identify its reasons for not accepting the plaintiff’s submissions to it. It is not required to explain why it rejected, or else did not rely on some of the material that was before it, including medical opinions, and preferred other opinions.

10. [82]

    As the High Court noted in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, at [56], the requirement to identify a path of reasoning by which it arrived at its opinion, did not entail any obligation on the part of the Appeal Panel:

11. [83]

    Much less is an Appeal Panel required to give reasons why it does not accept submissions to it which articulate one of a number of available arguments.

12. [84]

    As Basten AJA said in Lancaster at [45], when discussing the obligation to give reasons by an Appeal Panel:

13. [85]

    The plaintiff has not persuaded me of any error in the Appeal Panel’s consideration of the level of impairment of the plaintiff on the Social Functioning scale.

14. [86]

    In considering the Appeal Panel’s rejection of the plaintiff’s submissions to it with respect to the Concentration, Persistence and Pace scale, the substance of the complaints really invited a merits review by this Court. The substance of the submissions was that the extent of deterioration in the plaintiff’s concentration and persistence was such that he ought to have been categorised as a Class 3 impairment.

15. [87]

    I reject the plaintiff’s submission that playing a musical instrument and engaging in creative activities, including doing “some yoga and some weights”, cannot be taken into account as relevant to an assessment of concentration and persistence under the scale. To my mind, it is a matter for the Assessor or the Appeal Panel to determine whether the playing of a musical instrument requires concentration by a person. The fact that the musical instrument is regularly played may well indicate to an expert assessor that there has been impairment, even if of a minimal kind, to the individual’s pre-injury ability to concentrate and persist with an activity. The same can be said of creative activities. Many creative activities involve intense concentration. Very few creative activities involve no concentration or persistence at all. I regard these matters of fact as relevant and capable of being taken into account in assessing such impairment.

16. [88]

    The plaintiff certainly has not satisfied me that they are an irrelevant consideration.

17. [89]

    The plaintiff also submits that it was erroneous to take into account that the plaintiff had engaged with MindSpot in undertaking a course of anxiety and depression treatment. I reject such submission.

18. [90]

    Were a claimant to be prescribed a course of treatment for a psychological or psychiatric condition, which course required attending to treatment on more than one occasion, depending on the particular course and the treatment which it provided, it is open to conclude that participation in that course requires a degree of concentration and a degree of persistence. It is a matter for the Appeal Panel and the Medical Assessor to weigh up that fact in coming to its assessment of the impairment level on the Persistence, Concentration and Pace scale.

19. [91]

    Far from not properly assessing the impact upon the plaintiff’s pre-injury impairment, the Appeal Panel carefully identified in its reasons at [36] and [40]-[49] what the plaintiff did prior to the plaintiff’s psychiatric injury preventing ongoing employment, it identified and assessed what the plaintiff was capable of doing at the time of its review, and made an assessment, as did the Medical Assessor, of the level of that impairment.

20. [92]

    No error of a jurisdictional kind or error on the face of the record has been identified.

21. [93]

    In my view, in substance, the plaintiff was seeking a merits review from this Court which is not an available basis for the relief which his Summons sought.

Conclusion

1. [94]

   I have concluded that the plaintiff has failed to demonstrate any jurisdictional error or error on the face of the record on the part of the Appeal Panel in its determination and in the reasons which it provided for its determination.

2. [95]

   I have concluded that there is no basis for the plaintiff to obtain any of the relief which he seeks.

3. [96]

   I note that it was agreed between the parties that whatever the outcome of the proceedings, this Court would not be invited to make any order for costs.

Order

1. [97]

   Summons filed 21 August 2023 dismissed.