Field-Whittaker v Thomas & Naaz Pty Ltd

1. [1]

   HER HONOUR: This matter involves the review of a decision of a Medical Appeal Panel of the Personal Injury Commission of New South Wales.

2. [2]

   The plaintiff is Belinda Field-Whittaker. The first defendant is Thomas & Naaz Pty Ltd (“the employer”). The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is members Ms Deborah Moore and Drs Julian Parmegiani and Michael Hong in their capacity as an Appeal Panel (“the Appeal Panel”) constituted under s 328 of the Workplace Injury Management and Worker’s Compensation Act 1998 (NSW) (“WIM Act”). The second and third defendants filed submitting appearances.

3. [3]

   The parties relied on a Court Book (“Ex A”).

4. [4]

   By amended summons filed pursuant to leave on 11 October 2021, the plaintiff relevantly seeks the following orders:

   1. (1)

      An order under s 69 of the Supreme Court Act 1970 (NSW), setting aside the certificate and reasons dated 28 May 2021 (and incorporating the Preliminary Review directions of 15 April 2021) given by an Appeal Panel appointed under the WIM Act.

   2. (2)

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

Background

1. [5]

   From August 2010 onwards, the plaintiff was an employee of Thomas & Naaz Pty Ltd, and from about 2012 onward was the practice manager in respect of the four medical practices that comprised the business. Drs Thomas and Naaz are husband and wife. Dr Naaz is a practising GP. Mr Thomas is no longer practicing as a GP.

2. [6]

   In or about December 2019, the plaintiff sustained a psychiatric injury in the course of her employment as a result of stressful incidents at work including bullying, harassment and victimisation. As a result the plaintiff was certified as totally unfit for work by her treating general practitioner Dr Sheila Lorenzo (“GP”). The plaintiff has remained unfit for work, and under the care of her GP and psychologist Dr Stephanie Saulnier since that date. The plaintiff made a workers compensation claim, which was accepted by the relevant insurer.

3. [7]

   On 3 July 2020, the plaintiff made a claim pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (“WC Act”) for 19% whole person impairment (“WPI”) based on the opinion of Dr Martin Allan dated 1 July 2020.

4. [8]

   On 13 August 2020, the workers compensation insurer denied the claim on the basis that it considered the plaintiff’s condition was not yet stable, relying on the opinion of Dr Peter Whetton dated 13 August 2020. Dr Whetton’s assessment was otherwise generally consistent with Dr Allan’s.

5. [9]

   On 26 August 2020, the plaintiff commenced proceedings to resolve a dispute in the Workers Compensation Commission (“WCC”) in respect of the plaintiff’s WPI claim.

6. [10]

   On 24 September 2020, the Registrar of the WCC (“the Registrar”) referred the claim to Dr Samson Roberts, an Approved Medical Specialist (“the AMS”) for assessment of the plaintiff’s WPI (Ex A, 160).

7. [11]

   On 11 November 2020, the AMS examined the plaintiff. On 26 November 2020, the AMS issued a Medical Assessment Certificate (“MAC”) assessing that the plaintiff suffered a 5% WPI (Ex A, 161).

8. [12]

   On 23 December 2020, the plaintiff lodged an appeal against the decision of the AMS relying upon all 4 grounds set out in s 327(3) of the WIM Act (Ex A, 172). These grounds are as follows:

9. [13]

   Attached to the application were a series of documents including submissions and further evidence (“first tranche of evidence”) (Ex A, 178). The plaintiff sought to rely upon additional relevant information which she said was not reasonably available when the application was made. This included:

   1. (1)

      A report of Dr Saulnier dated 31 August 2020 (“Saulnier Report 31.8.20”) (Ex A, 191);

   2. (2)

      A patient health summary from her GP covering the period 22 April 2020 to 17 September 2020 (“GP Health Summary”) (Ex A, 193);

   3. (3)

      Certificates of capacity dated 17 December 2019, 3 January 2020, 28 January 2020, 28 February 2020, 28 April 2020, 28 May 2020, 24 June 2020, 27 July 2020, 26 August 2020, 23 October 2020, and 23 November 2020 (Ex A, 199); and

   4. (4)

      A further statement of the plaintiff dated 23 December 2020 annexing a resignation letter (“Field-Whittaker Statement 23.12.20”) (Ex A, 233).

10. [14]

    On 13 January 2021, the employer filed a notice of opposition (“Notice of Opposition”) and submissions in support (Ex A, 238).

11. [15]

    On 22 January 2021, further documents were filed by the plaintiff including a report of Dr Saulnier dated 19 January 2021 (“Saulnier Report 19.1.21”) a further statement of the plaintiff dated 21 January 2021 (“Field-Whittaker Statement 21.1.21”) and further submissions (“second tranche of evidence”) (Ex A, 248). The Field-Whittaker Statement 21.1.21 described the plaintiff’s condition as worsening and referred to her GP arranging for her to trial antidepressant medication.

12. [16]

    On 9 February 2021, the plaintiff submitted an updating report of Dr Allan dated 3 February 2021 (“Allan Report 3.2.21”) accompanied by a letter making submissions (“third tranche of evidence”) (Ex A, 255).

13. [17]

    On 15 February 2021, the employer submitted further submissions in support of its Notice of Opposition (Ex A, 273).

14. [18]

    On 23 February 2021, the Registrar published a decision pursuant to s 327(4) of the WIM Act. The Registrar stated at [7] and [8] of his decision (Ex A, 276):

15. [19]

    Thus, the Registrar decided that grounds (b) (availability of additional relevant information) and (d) (demonstrable error) were arguable, and the plaintiff’s appeal was referred to an appeal panel.

16. [20]

    On 1 March 2021, the WCC became the Personal Injury Commission (“PIC”).

17. [21]

    On 15 April 2021, the Appeal Panel conducted a preliminary review and published directions (“Preliminary Decision”) (Ex A, 23). The plaintiff was directed to attend a medical examination before Dr Parmegiani and did so on 5 May 2021.

18. [22]

    On 28 May 2021, the Appeal Panel issued a certificate (“Appeal Panel Certificate”) and accompanying reasons assessing the plaintiff’s WPI at 7% (“Substantive Decision”) (Ex A, 25).

19. [23]

    The grounds of judicial review fall into two main topics. Judicial Grounds (2)-(3) relate to the rejection of additional evidence adduced by the plaintiff (“fresh/additional information”). Judicial Grounds (4)-(10) relate to the Appeal Panel’s Psychiatric Impairment Rating Scale (“PIRS”) assessment. Judicial Ground (1) is not pressed. I will address the parties’ arguments on each of the two grouped topics.

The relevant statutory provisions

1. [24]

   I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the WC Act, the worker must suffer an injury which is defined in s 4 as follows:

2. [25]

   No compensation is payable pursuant to s 9A(1) of the WC Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Section 9A relevantly reads:

3. [26]

   Chapter 7, Part 7 of the WIM Act provides for medical assessment, including the assessment of the degree of a person’s WPI, by an AMS and, by way of review, by appeal panels.

4. [27]

   AMS’ are appointed under the WIM Act to deal with ‘medical disputes’ which are defined in s 319 of the WIM Act to mean:

5. [28]

   Section 325 of the WIM Act relates to the medical assessment certificate. It reads:

6. [29]

   Appeals against medical assessments in relation to fresh or additional evidence are governed by ss 327 and 328 of the WIM Act. Those sections relevantly read:

7. [30]

   Section 331 of the WIM Act requires an Appeal Panel to apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016) (“the Guidelines”) when conducting a review. Section 331 relevantly reads:

The Guidelines

1. [31]

   The parties referred to a number of relevant clauses in the Guidelines. Clause 1.6 provides “a basic summary of some key principles of permanent impairment assessments.” They relevantly include:

2. [32]

   I will refer to and extract clauses 11.11-11.13 of the Guidelines when I deal with Judicial Grounds (4)-(10) later in this Judgment.

Judicial Grounds (2)-(3) – The rejection of additional relevant evidence

1. [33]

   These grounds of Judicial Review are as follows:

   1. (1)

      The determination to reject all the plaintiff’s further evidence was contrary to the terms of the WIM Act, and the Guidelines, and constitutes a jurisdictional error by:

2. [34]

   Relevant to the determination of whether the Appeal Panel’s rejection of the plaintiff’s further evidence was contrary to the terms of the WIM Act and the Guidelines, are the submissions made to the Appeal Panel on that issue by each of the parties, and the Appeal Panel’s determinations with respect to those submissions.

3. [35]

   As noted at [12] of this Judgment, on 23 December 2020 the plaintiff provided a first tranche of evidence in support of her appeal of the decision of the AMS. In her first tranche submissions, the plaintiff’s solicitor addressed the relevance of the additional material at [9]-[18]. Paragraphs [10]-[18] of the plaintiff’s first tranche submissions relevantly read (Ex A, 181):

4. [36]

   As noted at [13] of this judgment, the employer submitted a Notice of Opposition to the plaintiff’s appeal. The employer made the following submissions in relation to the issue of fresh evidence, in support of its Notice of Opposition (Ex A, 243):

5. [37]

   As noted at [14] of this judgment, on 22 January 2021 the plaintiff made further submissions in support of her appeal in the second tranche of evidence. The plaintiff’s second tranche submissions relevantly read (Ex A, 250):

6. [38]

   As mentioned at [16] of this Judgment, on 9 February 2021 the plaintiff submitted a third tranche of evidence, comprised of the Allan Report 3.2.21 and a brief letter making submissions (Ex A, 255). That letter relevantly reads:

7. [39]

   Having received the plaintiff’s first, second and third tranches of evidence, the employer made further submissions to the Appeal Panel in support of its Notice of Opposition. At [18]-[20] in relation to issue of fresh evidence the employer relevantly submitted (Ex A, 273):

8. [40]

   As previously outlined in this Judgment, the Appeal Panel gave two decisions, the Preliminary Decision, and the Substantive Decision.

9. [41]

   In relation to the issue of additional evidence, the Appeal Panel’s Preliminary Decision relevantly reads (Ex A, 23):

10. [42]

    In relation to the issue of additional evidence, at [8]-[16] of the Appeal Panel’s Substantive Decision under the heading ‘Fresh evidence’ the Appeal Panel relevantly writes (Ex A, 26):

11. [43]

    Under the heading ‘submissions’ the Appeal Panel stated (Ex A, 27):

12. [44]

    At the hearing of this judicial review, both parties referred to Petrovic v BC Serv no 14 Pty Ltd & Ors [2007] NSWSC 1156 (“Petrovic”) at [31] to [33], where Hoeben J stated:

13. [45]

    The plaintiff submitted that the Appeal Panel’s determination to reject all the plaintiff’s further evidence was contrary to the terms of the WIM Act and the Guidelines and constituted a jurisdictional error.

14. [46]

    The plaintiff submitted that the Appeal Panel fell into error in its application of the relevant legislation to the question of additional evidence. In the plaintiff’s submission the reasons given in the Appeal Panel’s Preliminary Decision purport to apply s 327(5) of the WIM Act which on its terms only relates to appeal grounds raised under 327(3)(c) and (d) of the WIM Act. The plaintiff submitted that the Appeal Panel created a prima facie time limit for those appeals and had nothing to say on the admission or rejection of evidence.

15. [47]

    The plaintiff noted that in the Preliminary Decision, the Appeal Panel made a decision based on the assessment conducted by Dr Parmegiani which certified that the plaintiff suffered a 7% WPI. In the Substantive Decision under the heading “Preliminary Review” the Appeal Panel reiterated the findings in their Preliminary Decision, including in relation to the rejection of the fresh evidence, and purported to give further reasons. The plaintiff submitted that arguably the decision to reject the fresh evidence, and the reasons for the same, ought properly be seen as contained in the Preliminary Decision. The plaintiff submitted that the decision to reject had already been made by the time of the Substantive Decision, however, to the extent that paragraphs [8]-[17] of the Substantive Decision give further reasons for rejecting the fresh evidence, those further reasons also disclose error in applying the statutory provisions.

16. [48]

    The plaintiff noted that at [13] of the Substantive Decision, the Appeal Panel referred to submissions made by the employer to the effect that the fresh evidence should be rejected because the plaintiff was “out of time” pursuant to s 327(5) of the WIM Act, and had failed to satisfy the “Special Circumstances” test in that section.

17. [49]

    The plaintiff also noted that at [15] of the Substantive Decision, the Appeal Panel accepted these submissions as to the relevance and application of s 327(5) of the WIM Act to the fresh evidence sought to be relied upon by the plaintiff.

18. [50]

    However, in the plaintiff’s submission s 327(5) of the WIM Act has no application to grounds of appeal under s 327(3)(a) or (b) and was accordingly not relevant to the issue the Appeal Panel were deciding.

19. [51]

    Further, in the plaintiff’s submission the quoted passage from Petrovic at [16] of the Substantive Decision, is not relevant to the plaintiff’s case and the Appeal Panel misquoted and ultimately misunderstood what Hoeben J was saying at [31]-[34]. The plaintiff submitted that His Honour was not suggesting that a statement from an injured worker updating their symptoms or circumstances could not be “additional fresh evidence” within the meaning of 327(3)(b). Rather the quoted passage relates to allegedly fresh evidence that goes to the process or the manner of making the assessment. The plaintiff submitted that the fresh evidence sought to be relied upon here was information of a medical kind or which is directly related to the decision required to be made by the AMS.

20. [52]

    In the plaintiff’s submission, the correct focus should have been upon ss 327(3)(b) and 328(3) of the WIM Act. The plaintiff submitted that while the considerations in those sections are touched upon by the Appeal Panel, it is clear that the erroneous considerations referred to above largely informed the decision.

21. [53]

    Further, the plaintiff submitted that the Appeal Panel was in error in finding that there was no explanation as to why the plaintiff’s additional evidence was not filed and submitted in the original medical assessment. In light of what the plaintiff included in supporting submissions, such a finding was not available on the evidence and submissions before the Appeal Panel.

22. [54]

    In the plaintiff’s submission the consequence of rejecting all of the plaintiff’s fresh evidence led to the rejection of the ground of appeal based on additional relevant information. This consequently led to a finding there was no evidence of any deterioration.

23. [55]

    The employer noted that the Appeal Panel’s Preliminary Decision indicates that the plaintiff’s additional evidence was rejected on the basis that an insufficient explanation was given for it not having been provided. The employer also noted that the additional statement was rejected on the basis that a re-examination was to take place, with what the employer said, was the evident effect that it would supersede the statement.

24. [56]

    The employer also noted that s 327(5) of the WIM Act was referred to in relation to the documents filed after the appeal. The employer further noted that the plaintiff’s appeal had not sought to rely on those documents, and did not seek to commence a fresh appeal (eg, alleging deterioration between the date of filing the appeal and the date on which the Filed After Appeal Documents were filed). There were additional bases on which the Appeal Panel concluded that the further evidence should not be admitted.

25. [57]

    The employer opined that it was not clear why the plaintiff alleged that the decision not to accept further evidence was contrary to the Guidelines. The employer submitted that there was no such error.

26. [58]

    The employer noted that the plaintiff’s written submissions to this Court at [13] suggest that the Appeal Panel “mis-quote and ultimately mis-understand” an indication of Hoeben J at Petrovic. The employer submitted that there is no evident misunderstanding in the Appeal Panel’s reference to this decision, and it is unclear what is said to have been misquoted. In the employer’s submission, Petrovic, as noted by the Appeal Panel, contains helpful guidance on when additional information may be relevant. The employer noted that the materials sought to be relied on by the plaintiff addressed many matters which were not relevant, such as defamation proceedings she had commenced.

27. [59]

    In relation to Judicial Ground (3), the employer noted that the plaintiff’s first tranche submissions stated at [10] that: “With the exception of the earlier Certificates of Capacity (which are included because they have become relevant) all the further documents were not available when the application was filed and were not before Dr Roberts.” The employer submitted that this does not explain why the historical health summary provided by the plaintiff’s GP was said not to have been available, or why developments in Dr Saulnier’s or the plaintiff’s GP’s assessments following the assessment by the AMS are material.

28. [60]

    The employer submitted that the Appeal Panel accepted the employer’s submissions in rejecting this evidence. Those submissions appear at [6]-[14] of the Substantive Decision. The employer noted that it had also submitted that (Ex A, 244):

29. [61]

    In oral submissions at the hearing, Counsel for the defendant submitted that the Appeal Panel stated that it did consider all the materials (T24.22-33).

30. [62]

    The plaintiff sought to rely on additional relevant information which she asserted was not reasonably available when the appeal application was filed.

31. [63]

    I accept that some of the so-called additional evidence repeated past events that occurred before the decision of the AMS so they could have reasonably been obtained by plaintiff prior to that decision.

32. [64]

    However, the Appeal Panel erred when it adopted the insurer’s submissions that s 327(5) of the WIM Act was applicable. The Appeal Panel stated at [13] and [15] of the Substantive Decision that pursuant to s 327(5) of the WIM Act, the plaintiff was out of time to file any further evidence in relation to her appeal. The Appeal Panel further stated that in their Preliminary Decision, they noted all the additional evidence. The additional evidence was ultimately rejected because it pre-dated the assessment by the AMS and there was no explanation as to why it was not filed and submitted at that time. Given that a re-examination was to take place, the plaintiff’s additional statement was also rejected.

33. [65]

    Section 327(5) of the WIM Act reads:

34. [66]

    In the reasons given in the Preliminary Decision, the Appeal Panel adopted the employer’s submissions and applied s 327(5) of the WIM Act as part of its reasoning process. Section 327(5) adds another threshold requirement that the plaintiff has to demonstrate special circumstances to justify an increase in the period for an appeal. Section 327(5) only relates to appeal grounds raised under ss 327(3)(c) and (d) not ss 327(a) or (b). This is seemingly appropriate as if s 327(5) of the WIM Act applied to ss 327(a) or (b), a 28-day time limit would be imposed on claims of deterioration which intuitively would occur over a longer time period and so may be erroneously excluded, and on the provision of additional relevant information the attainment of which the appellant may not exercise any control.

35. [67]

    Sections 327 (c) and (d) of the WIM Act do not apply here. The plaintiff relied upon s 327(b) dealing with the availability of additional information and also s 328(3). Neither of those provisions impose a time limit of 28 days, nor do they require that there be “special circumstances.”

36. [68]

    On the issue of the Appeal Panel’s interpretation of Petrovic. It is my opinion that the Appeal Panel misunderstood what was said. Hoeben J at [31] to [33] was referring to the plaintiff’s evidence before the AMS. This is not the situation here as the plaintiff was updating what she says is her deteriorating medical condition. The Appeal Panel decided that this statement should be rejected on the basis that she could give this evidence when she was re-examined by Dr Parmegiani. However, it may have been better considered along with the other additional evidence. The Appeal Panel applied the correct test, the additional material did constitute additional evidence as defined in s 328(3) of the WIM Act. By applying s 327(5) of the WIM Act, the Appeal Panel made an error of law on the face of the record.

Judicial Grounds (4)-(10) – PIRS Assessment of concentration, persistence, pace and employability

1. [69]

   Judicial Grounds of review (4)-(10) are as follows:

   1. (1)

      The Appeal Panel made a jurisdictional error and/or errors on the face of the record in misapplying the Guidelines by;

   2. (2)

      The Appeal Panel made a jurisdictional error by failing to find error in the AMS’ PIRS assessment of Employability.

   3. (3)

      Having found no error in the AMS’ PIRS assessment of Employability. the Appeal Panel nonetheless purported to reassess that PIRS category, with such assessment necessarily being infected by apprehended bias.

   4. (4)

      The Appeal Panel failed to give any or adequate reasons for its medical assessment of the plaintiff.

   5. (5)

      The Appeal Panel failed to engage with the plaintiff’s evidence or submissions before it.

   6. (6)

      The Review Panel constructively failed to exercise a statutory function in that it failed its assessment in accordance with the Guidelines.

   7. (7)

      The Appeal Panel’s Decision is vitiated by jurisdictional errors and/or errors on the face of the record and should be set aside.

2. [70]

   Clauses 11.11-11.13 of the Guidelines set out the PIRS. Clause 11.11 relevantly reads:

3. [71]

   Clause 11.12 of the Guidelines provides:

4. [72]

   This judicial review is concerned with scale 5 (concentration, persistence and pace) and scale 6 (employability). Tables 11.5 and 11.6 are as follows:

5. [73]

   Both parties referred to Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (“Ballas”), the Court of Appeal per Bell P (with whom Payne JA and Emmett AJA agreed) explained the PIRS at [93]-[95] as follows:

6. [74]

   The Appeal Panel stated at [45]-[60] of their Substantive Decision:

7. [75]

   With regards to employability, the Appeal Panel noted that Dr Parmegiani reported as follows (Ex A, 34):

8. [76]

   Under the heading ‘Findings and Reasons’ in relation toemployability the Appeal Panel stated:

9. [77]

   The plaintiff submitted that the Appeal Panel made a jurisdictional error by failing to find error in the AMS’ PIRS assessment of “Employability”. The plaintiff noted that, having not so found, the Appeal Panel nonetheless purported to reassess that PIRS category, coming to the same assessment as the AMS. In the plaintiff’s submission, the assessment was infected by apprehended bias, given the starting point was a statement that there was in fact no error by the AMS.

10. [78]

    The plaintiff noted that on the basis of the evidence available it was submitted that “employability” should be assessed at Class 5. Such an assessment, it was observed, accorded with the substantive medico-legal opinions relied upon by both the plaintiff (Dr Allan) and the defendant (Dr Whetton).

11. [79]

    The plaintiff submitted that the “activities” referred to in [49]-[50] of the Substantive Decision appear to be those described under “Social activities/ADL” at pages 4-5 of the MAC (Ex A, 164). If not, they do not appear to be described anywhere else. It is difficult to see how what is recorded on those pages as demonstrating “organisation, concentration…, management and functioning required to undertake this full-time activity”. The plaintiff submitted that there is no explanation anywhere in the report as to how any of this activity equates to work capacity. The AMS (and the Appeal Panel) appear to assume that there must be such a capacity because the plaintiff has a young child at home with her “full-time”.

12. [80]

    In the plaintiff’s submission the Appeal Panel made a jurisdictional error in misapplying the Guidelines by wrongly equating and conflating ability to perform remunerative work with ability to pursue parental duties and attend to some of the activities of daily living. In so doing, the Appeal Panel conflated the separate considerations of different PIRS categories in the Guidelines.

13. [81]

    The plaintiff noted that the Guidelines require an evaluation of the consequences of psychiatric disorder across six scales, each of which evaluate an area of functions. 11.11 differentiates Social Functioning (Table 11.4), Travel (Table 11.3) and Social and recreational activities (Table 11.2) as part of a broader category of “Activities of Daily Living”. Employability (Table 11.6) stands apart from those activities of daily living and is unequivocally to be evaluated as a distinct area of functional impairment.

14. [82]

    The plaintiff submitted that the Appeal Panel repeated and augmented the error of the AMS by seemingly endorsing the reliance on demonstrated abilities in “homemaking and parenting” as relevant to and comparable to a capacity for employment.

15. [83]

    The plaintiff submitted that it is unclear how these activities could “attract remuneration in a different setting” unless the Appeal Panel intended to suggest that it demonstrates a present capacity for the plaintiff to work in childcare or child minding. There is no evidence of this except that the plaintiff looked after her daughter in 2020. The plaintiff noted that looking after one’s children is different to being employed to look after children, and submitted that on this reasoning, every injured worker who was capable of looking after their own child (seemingly without any consideration of how well or not this is being done) must have work capacity.

16. [84]

    Similarly, in the plaintiff’s submission the Appeal Panel repeated this error in respect of the assessment of the plaintiff’s concentration, persistence and pace, which again was based largely on the plaintiff’s parenting of her two-year-old child in 2020. While the plaintiff accepted that looking after a child does demonstrate a degree of persistence, concentration, and a capacity to perform some complex tasks (as stated by Dr Parmegiani), there is no analysis or description in the decision as to what degree the Plaintiff can or cannot do this due to her injury.

17. [85]

    The plaintiff noted that the ability to care for one’s children or assist elderly parents is a clearly demarcated part of the “Social Functioning” to be assessed under Table 11.4. The Guidelines (at 11.12) instruct an AMS to “consider activities that are usual for the person’s age, sex and cultural norms” when rating functionality. The Guidelines’ instruction to focus on typical or “usual” activities demonstrates that the plaintiff correctly identified error by the AMS in not determining what work the plaintiff could do. To simply point out that the plaintiff can attend to some of the activities of daily living, does not, in the plaintiff’s submission, bespeak of an ability to be gainfully employed on the open labour market.

18. [86]

    The plaintiff submitted that the utilisation of an irrelevant factual matter to inform the assessment of functionality within a particular PIRS category is a jurisdictional error: see Perry v George Weston Foods Limited [2021] NSWSC 359 per Rothman J especially at [71] to [77].

19. [87]

    The plaintiff submitted that the AMS failed to give any or adequate reasons for the assessment of the plaintiff’s “employability” and the Appeal Panel should have found demonstrable error.

20. [88]

    The plaintiff noted that another way of framing her argument is that the Appeal Panel constructively failed to exercise a statutory function in that it failed to carry out its assessment in accordance with the Guidelines, and/or the Appeal Panel Certificate is vitiated by jurisdictional errors and/or errors on the face of the record, and should be set aside.

21. [89]

    The employer noted that at [25]-[27] and [34]-[35] of its submissions in support of its Notice of Opposition it stated (Ex A, 245):

22. [90]

    The employer noted that the Appeal Panel’s consideration of the employability category appears in the Substantive Decision at [46]-[52]. In the employer’s submission the Appeal Panel did not consider that the AMS had erred in having regard to “homemaking and parenting” in the context of assessing this criteria. Rather in the Appeal Panel’s view “the [AMS] identified the nature and extent of the plaintiff’s activities of ‘homemaking and parenting’ in the context of the level of organisation, concentration (for example, supervising homework), management and functioning required to undertake this full-time activity when assessing her capacity for employment” (at [49] of the Substantive Decision).

23. [91]

    The employer noted that nevertheless, the Appeal Panel (at [52] of the Substantive Decision) decided that even though it did not agree that there had been error in assessing this criteria, it would “include it as part of the re-examination process because of the numerous issues raised by the [plaintiff] and for what [they] considered the ‘completeness’ of the appeal”. In re-assessing the plaintiff, Dr Parmegiani agreed that a score of “Class 3” for employability was appropriate, because she was “able to perform productive activities that could attract remuneration in a different setting” (at [60] of the Substantive Decision).

24. [92]

    The employer noted that both the AMS, and Dr Parmegiani, concluded following two separate examinations that this was the appropriate assessment of the plaintiff’s impairment. There was, in the employer’s submission, no error in this determination and the ground is not established.

25. [93]

    The employer submitted that the reasons provided by the Appeal Panel meet the standard addressed in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, and this ground is not established.

26. [94]

    As was explained in Ballas at [91]-[92], while it is correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which they are required to address in completing a medical assessment, the characterisation of conduct as going to “social and recreational activities” on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion. While there may be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct categorisation of the conduct, i.e. whether it goes to “self-care and personal hygiene”, “social and recreational activities”, “travel”, “social functioning (relationships)”, “concentration, persistence and pace” or “employability”. This task does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales.

27. [95]

    Clause 11.12 of the Guidelines provides that impairment in each area is rated by using class descriptors. Classes range from 1 to 5 in accordance with severity. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background, and consider activities that are usual for the person's age, sex and cultural norms.

28. [96]

    The Appeal Panel assigned class 2 for concentration, persistence and pace, the same class as the AMS assigned. The Appeal Panel agreed that the AMS erred when he misapplied the relevant criteria to these categories. It was concluded that a re-examination by Dr Parmegiani was appropriate: see the Substantive Decision at [54]-[55]. The Appeal Panel adopted Dr Parmegiani’s ratings under the 6 Classes. These class descriptors are “mild impairment: can undertake a basic retraining course or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.” Part of the Appeal Panel’s reasoning for assigning that class referred to the plaintiff being able to manage her finances, order groceries online and look after her two-year-old child on a fulltime basis. The Appeal Panel considered that the task of looking after a two-year-old child requires a degree of persistence, concentration and a capacity to perform complex tasks.

29. [97]

    When the Appeal Panel determined that by being able to look after a 2 year old fits within the impairment rating scale for concentration, pace and persistence they erred as these activities should have been assigned to social functioning. In doing so, the Appeal Panel took into account an irrelevant consideration.

30. [98]

    So far as employability is concerned, the Appeal Panel agreed with the reasoning of the AMS who assigned “class 3” for employability but decided to include it as part of the re-examination process because of the numerous issues raised by the plaintiff and for what it considered “completeness” of the appeal. Class 3 descriptors for employability are “moderate impairment.” This means the plaintiff cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”

31. [99]

    Part of the Appeal Panel’s reasoning was again related to the plaintiff’s family role looking after her daughter fulltime, taking her children to sporting activities on weekends, purchasing groceries online and preparing meals. The Appeal Panel found that these activities demonstrate abilities in homemaking and parenting. These activities are not relevant to or comparable to a capacity to employment. The Appeal Panel wrongly assigned these activities to employability when it should have assigned them to social functioning.

32. [100]

    By assigning activities to the incorrect PIRS table the Appeal Panel took into account irrelevant considerations. This constitutes jurisdictional error.

Judicial Ground (6) – Apprehended Bias

1. [101]

   In relation to Judicial Ground (6), the plaintiff’s claim of “apprehended bias” is referred to but not otherwise addressed in her written submissions. I have decided to briefly address this ground of review as I consider that this ground should not be argued lightly.

2. [102]

   General principles regarding apprehended bias apply to tribunals: see Morton v Transport Appeal Board (No 1) (2007) 168 IR 403, [2007] NSWSC 1454, 414-415, at [57]-[59], Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal [2004] NSWCA 291 at [22]-[25].

3. [103]

   In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [2001] HCA 17, Hayne J noted that allegations of apprehended bias through prejudgment are often dealt with similarly to allegations of actual bias through prejudgment, requiring several distinct elements to be established, such as a need to show that the decision maker would apply an earlier opinion to a matter without giving it fresh consideration (at [185]-[186]; see also South Western Sydney Area Health Services v Edmonds (2007) 4 DDCR 421, [2007] NSWCA 16, at [97]-[106]; Johnson v Johnson (2000) 201 CLR 488, [2000] HCA 48, at [13]).

4. [104]

   There is nothing to suggest that a fair minded-lay observer would not have reasonably apprehended that Dr Parmegiani would fail to bring an impartial and unprejudiced mind to his assessment of the plaintiff’s employability scale.

5. [105]

   This ground of judicial review fails.

Result

1. [106]

   The Appeal Panel made errors of law on the face of the record and jurisdictional errors. The result is that the decisions of the Appeal Panel dated 28 May 2021 and 15 April 2021 are set aside. The matter is to be remitted to the President of the Personal Injury commission to be determined according to law.

Costs

1. [107]

   Costs normally follow the event. The first defendant is to pay the plaintiff’s costs.

   1. (1)

      The decisions of the Appeal Panel dated 28 May 2021 and 15 April 2021 are set aside.

   2. (2)

      The matter is to be remitted to the President of the Personal Injury Commission to be determined according to law.

   3. (3)

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