Ballas v Department of Education (State of NSW)

1. [1]

   By summons filed on 14 September 2018, the plaintiff, Ms Fiona Ballas, claims orders by way of judicial review of a decision of the Registrar of the Workers Compensation Commission of New South Wales, by her delegate, refusing to allow the plaintiff's application to appeal from a medical assessment decision to proceed. The assessment had been made by Dr Michael Hong, a psychiatrist and an Approved Medical Specialist (AMS).

2. [2]

   The summons joined four defendants. Three of the defendants, being the Registrar of the Workers Compensation Commission (the Registrar), the delegate of the Registrar (the Delegate), and the Arbitrator of the Workers Compensation Commission who issued the certificate of determination based upon Dr Hong’s decision, filed submitting appearances and took no active part in the proceedings. The New South Wales Department of Education (the Department), the first defendant, is the only active defendant.

3. [3]

   For the reasons which follow, Ms Ballas’s summons should be dismissed with costs.

Background to the claim

1. [4]

   Ms Ballas was employed by the Department from 1991, and worked as a primary school teacher at Yagoona Public School from 1999. From 2011 to 2016, she was exposed to a series of events that resulted in a significant psychological injury.

2. [5]

   On 24 October 2016, Ms Ballas brought a claim for permanent impairment compensation. Liability was not disputed. She was referred to Dr Hong, the AMS, to assess whole person impairment (WPI) resulting from a psychiatric/psychological disorder with a deemed date of injury of 24 October 2016.

3. [6]

   In order to appreciate the relevance of what occurred and the basis of Ms Ballas’s application to this Court, it is necessary to review the statutory framework for the assessment of impairment and the relevant provisions of the Workers Compensation Guidelines, which govern that assessment.

The statutory framework

1. [7]

   Section 66(1) of the Workers Compensation Act 1987 (NSW) (the 1987 Act) provides:

2. [8]

   Assessment of impairment is governed by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). If there is a medical dispute concerning permanent impairment of an injured worker, there is a process, under s 321A of the 1998 Act and the regulations made under that section, by which the worker is referred by the Registrar to an AMS who examines the worker.

3. [9]

   Under s 325(1) of the 1998 Act, the AMS to whom a medical dispute is referred is to give a Medical Assessment Certificate (MAC). The MAC is required by s 325(2) to include details of the matters referred for assessment, a certification of the AMS’s assessment, the reasons for the assessment and the facts upon which the assessment is based. An assessment certified in a MAC is conclusively presumed to be correct as to, among other things, the degree of permanent impairment of the worker as a result of the injury: s 326 of the 1998 Act.

4. [10]

   The 1998 Act then provides for an appeal against a medical assessment in s 327, which relevantly states:

5. [11]

   The degree of permanent impairment is one of the matters that are conclusively presumed to be correct and thus is appealable under subs (1) and (2).

6. [12]

   The “criteria” referred to in the ground of appeal available under subs (3)(c) are found in the Workers Compensation Guidelines. Similarly, whether there is “demonstrable error”, within subs 3(d), may depend on whether those Guidelines have been properly applied.

7. [13]

   Under s 327(4), the Registrar plays a “gatekeeper” role: Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [19]. Before an appeal under s 327 can proceed, the Registrar must be “satisfied” that at least one of the grounds for appeal in subs (3)(a), (b), (c) or (d) has been “made out”. These requirements, as presently formulated, were helpfully considered by Simpson J (as her Honour then was) in Bunnings Group Limited v Peter Howard Hicks & Ors [2008] NSWSC 874 at [55]-[76]. They were not the subject of any dispute in this case.

8. [14]

   It is necessary to consider in more detail the Workers Compensation Guidelines (the Guidelines), which establish the relevant criteria referred to in s 327(3)(c) and misapplication of which may lead to demonstrable error within subs (3)(d).

9. [15]

   The Guidelines are applicable to an assessment of permanent impairment by an AMS as a result of s 322(1) of the 1998 Act. That subsection provides:

10. [16]

    The Guidelines are issued under s 376 of the 1998 Act, which relevantly states:

11. [17]

    There are particular requirements, in s 377, for the Guidelines relating to assessment of impairment. That section states:

12. [18]

    The Guidelines have the status of delegated legislation: Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [25]-[28]; Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins) at [29].

13. [19]

    The currently applicable Guidelines are the fourth edition issued on 1 April 2016. These apply to assessments of permanent impairment conducted on or after that date. It was not in dispute that ch 11, headed “Psychiatric and psychological disorders”, was the only part of the Guidelines relevant in the present case.

14. [20]

    The provisions of ch 11 relied upon by counsel in argument included:

15. [21]

    In addition, it was noted that the “class descriptors”, numbered 1 to 5, for each of the six scales are identified in the six tables referred to in 11.11. The most relevant of those tables are the following:

16. [22]

    The remaining relevant paragraphs of ch 11 concern the methodology for calculating the median class score, the aggregate score and the percentage WPI. There was no dispute in the present case that these calculations had been done correctly.

Assessment and certificate

1. [23]

   From the MAC issued on 14 May 2018 by the AMS, it appears that Dr Hong examined Ms Ballas on 8 May 2018 and had access to documentation which included the General Practitioner’s medical records, and reports from Dr A Pilsky of 13 April 2017, Associate Professor R Kaplan of 30 January 2018 and Dr R Rastogi of 6 November 2017.

2. [24]

   The AMS recorded that Ms Ballas’s psychiatric diagnosis was major depressive disorder (with possible psychotic features) and panic disorder. He also noted that she was currently taking Temazepam around twice per fortnight and Valium (5mg tablets) maybe three times in a fortnight. He certified that the impairment was permanent, that the degree of permanent impairment was fully ascertainable, and that Ms Ballas did not suffer from any relevant previous injury or pre-existing condition or abnormalities.

3. [25]

   In the section of the MAC headed “Reasons for Assessment”, the AMS indicated that he had rated her whole person impairment and directed attention to the “PIRS table”. “PIRS” refers to the Psychiatric Impairment Rating Scale, which is the subject of pars 11.11 and following of the Guidelines. The “PIRS table” was the completed “Table 11.8: PIRS rating form”, which was part of the MAC.

4. [26]

   Attached to the MAC were two tables:

   1. (1)

      “Table 2 – Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002”. This table indicated that Ms Ballas’s psychological condition was assessed as 8% whole person impairment, by reference to ch 11 pp 55 to 60 of the Guidelines, among other things.

   2. (2)

      “Table 11.8: PIRS Rating Form”. That form was as specified in the Guidelines and included the following, in addition to details of Ms Ballas, her employer, her claim and the date of assessment:

5. [27]

   Because of its significance in the present case, it should be noted that in arriving at his assessment of a WPI of 8%, the AMS assessed Ms Ballas as falling within class 2 in respect of the “PIRS Category: Social and recreational activities”. It appears that if Ms Ballas had been assessed as class 3 in this category, her WPI would have been 15% (according to the oral submissions) or 17% (according to the submissions that accompanied the application to appeal considered by the Delegate). In either case, she would have been entitled to compensation for that permanent impairment under s 66 of the 1987 Act and would have cleared the “at least 15%” threshold fixed by s 151H(1) of that Act for work injury damages, if otherwise entitled to that relief.

Application to appeal

1. [28]

   Ms Ballas lodged an application, dated 8 June 2018, to appeal against the decision of the AMS. The grounds of appeal relied upon in that application were:

   1. (1)

      “The assessment was made on the basis of incorrect criteria”; and

   2. (2)

      “The medical assessment certificate contains a demonstrable error”.

2. [29]

   The application was accompanied by “Draft Appellant’s Submissions”.

3. [30]

   The Department filed a notice of opposition to appeal against decision of Approved Medical Specialist, dated 29 June 2018. The “Respondent’s Submissions” were attached to that notice.

Registrar’s decision

1. [31]

   On 17 July 2018, the delegate of the Registrar issued her decision under s 327(4) of the 1998 Act. The decision was in the following terms:

2. [32]

   As a result of that decision, the Arbitrator issued her certificate of determination in this matter on 22 August 2018. That certificate contained the determinations that:

3. [33]

   Ms Ballas wishes to challenge the decision of the Delegate made under s 327(4) of the 1998 Act and the consequential decision of the Arbitrator to issue the certificate of determination on 22 August 2018.

The judicial review application

1. [34]

   In her summons filed on 14 September 2018, Ms Ballas seeks a declaration that the certificate of determination and the decision of the Delegate are void and of no effect or an order setting aside the decision of the Delegate and remitting the matter to the Registrar for referral to a different delegate to determine the matter according to law, as well as consequential orders.

2. [35]

   The grounds relied upon in support of this relief under s 69 of the Supreme Court Act 1970 (NSW) were formulated in the summons as follows:

3. [36]

   These grounds were effectively distilled in the course of submissions. Grounds 1, 2 and 3(f) and (g) are essentially consequential and depend on the other grounds being established.

4. [37]

   The principal, if not the only submission made orally, was that there was an error of law on the face of the record or a jurisdictional error because the Delegate failed to consider the submission that the MAC contained a demonstrable error because the AMS took into account irrelevant considerations, such as attending the RSL Club by herself to play poker machines, when those matters could not properly be taken into account when assessing the plaintiff against the Social and Recreational Activities scale. This can be called the Failure to Consider the Submission Ground. This ground reflects the substance of grounds 3(a), (b), (d) and (e) in the summons.

5. [38]

   Ground 3(c) appears to raise a different point, namely that there was an error of law on the face of the record made by the Delegate in deciding that the matters relevant to each category or scale were a matter of discretion rather than an application of the Guidelines. This can be called the Discretion as to Category Ground.

The Failure to Consider the Submission Ground

1. [39]

   Mr McManamey of counsel, who appeared for Ms Ballas, drew attention to the submissions that accompanied the application to appeal against the decision of the AMS (the Appeal Submissions). These submissions clearly fell within “the application and any submissions made to the Registrar”, referred to in s 327(4) of the 1998 Act. They were material that the Delegate, in this case, was required to address in deciding whether to permit Ms Ballas’s appeal to proceed.

2. [40]

   In particular, it was noted that the Appeal Submissions contained the following:

3. [41]

   I accept that the Appeal Submissions expressly raised the argument that when assessing “social and recreational activities”, the AMS took into account irrelevant considerations and failed to take into account relevant considerations, in that:

   1. (1)

      the categories of “social and recreational activities”, “travel”, and “social functioning” are distinct;

   2. (2)

      Table 11.2 indicates that the “social and recreational activities” category is directed to the kind of activities that involve interactions with other people, and not solitary activities, such as gambling on poker machines at an RSL club;

   3. (3)

      the fact that Ms Ballas is able to travel to the RSL club is not relevant to “social and recreational activities” but is relevant to “travel”;

   4. (4)

      the fact that Ms Ballas sees one friend regularly is relevant to “social functioning” not “social and recreational activities”;

   5. (5)

      seeing one friend regularly, to the extent that it is relevant to “social and recreational activities”, is consistent with a rating in class 4 rather than class 2 as assessed by the AMS.

4. [42]

   The substance of the Failure to Consider the Submission Ground was that the Delegate did not consider or address this argument when deciding not to allow the application to appeal to proceed.

5. [43]

   If a decision maker fails, in reaching the challenged decision, to address a substantial argument put to the decision maker, or misunderstands it, then there will have been effectively a failure to exercise the jurisdiction entrusted to the decision maker. This is both jurisdictional error and an error of law: Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 at [6], [58], [72] and [75].

6. [44]

   The argument set out above was a substantial argument put to the Delegate. If she did not address or consider it, or misunderstood it, her decision would be liable to be set aside for jurisdictional error and error of law on the face of the record, as Ms Ballas contended.

7. [45]

   Ms Ballas submitted that such an error was made by the Delegate in the present case because she considered only whether the AMS had made an error in assessing the class within “social and recreational activities” to which Ms Ballas should be assigned rather than whether the matters taken into account were relevant to the category or scale of “social and recreational activities” at all. It is consequently necessary to examine the Delegate’s reasons in some detail.

8. [46]

   The Delegate’s reasons contained the following, after recording formal matters concerning the application to appeal:

9. [47]

   Before considering the submissions concerning the Delegate’s reasons, it is worthwhile to acknowledge the well-established principle that, in cases of judicial review or appeals on a question of law from administrative tribunals, the reasons under challenge must be read as a whole and be considered fairly. They are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; [1996] HCA 6 and Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-7; [1993] FCA 456.

10. [48]

    Ms Ballas submitted that the Delegate, “from the start” at [14] of her reasons, treated the application as being about classes within the relevant scale or category and not about what should have been considered within the “social and recreational activities” category. It was further contended that, by citing Garling J’s decision in Jenkins, the Delegate demonstrated that she misapprehended what she was to consider. This was because the paragraphs from Jenkins relied upon related solely to classes within a category or scale, and not to what are the proper matters to take into account in respect of the scale or category.

11. [49]

    In my view, these submissions should not be accepted for two reasons. First, the Delegate’s statement at [14] that “[t]he appellant submits that the AMS erred and should have assessed Class 3” was merely a paraphrase of the final submission made to the Registrar by Ms Ballas in her written submissions, which was:

12. [50]

    As Ms Ballas’s counsel explained during the oral hearing, her being assessed as Class 3 and not Class 2 for social and recreational activities was what made the appeal worthwhile. If she was assessed as Class 3, her WPI would be 15% (or 17%) and thus she would be entitled to compensation and, potentially, damages.

13. [51]

    The Delegate referred, at [14], to Ms Ballas’s submission concerning the appropriate class under the heading “Social and Recreational Activities”, after referring to the six scales or categories and mentioning specifically “social and recreational activities” at [13]. If the reasons are read fairly and as a whole, [14] does not indicate that from the start the Delegate treated the application in the present case as being only about classes and not about the distinctions between the different scales or categories, as Ms Ballas submitted.

14. [52]

    Secondly, the Delegate’s reliance on [62] of Jenkins (at [23] of her reasons) does not establish that she did not address or consider the argument put in Ms Ballas’s submissions. It can be accepted that the citation of Jenkins in that paragraph of the Delegate’s reasons was not strictly apposite. Jenkins at [62] concerned examples given in relation to classes within a particular category or functional area and not whether particular activities fell to be assessed within one or more categories or functional areas. Nonetheless, that decision does establish that the process of rating psychiatric impairment is not to be approached on an overly rigid reading of the relevant provisions of ch 11 of the Guidelines, including the relevant tables (see for example Jenkins at [57]-[65]).

15. [53]

    Even if the Delegate provided an inapposite citation in [23], she did so while addressing the question of whether the activity of “seeing one friend regularly” was only relevant to the functional area of “social functioning” and not “social and recreational activities” (see [22] of her reasons). That the Delegate was addressing this argument, and not addressing only classes within a particular category or scale, is made clear in the following paragraph, [24], where she concludes:

16. [54]

    The Delegate was expressly addressing the very argument that Ms Ballas contends was not addressed. The Delegate may have misapprehended precisely what was held in Jenkins but she has not misapprehended the argument which had been put by Ms Ballas and which the Delegate was addressing.

17. [55]

    In regard to [24] of the Delegate’s reasons, counsel submitted that to “use the word ‘categories’ [in [24]] is a bit unfortunate because it does not mean anything. We have scales and we have classes.” If it is being submitted that the word “categories” used in the Delegate’s reasons did not refer to the areas of functional impairment to be assessed by reference to the scales in par 11.11, I do not accept that this is the case.

18. [56]

    As Mr Morgan, counsel for the Department, noted, the six functional areas identified in par 11.11 of the Guidelines are described, in the Guidelines, as “scales” in par 11.11, “area[s]” in par 11.12 and “PIRS Categor[ies]” in Table 11.8, which is the PIRS rating form. In addition, Campbell J in Ferguson v State of New South Wales & Ors [2017] NSWSC 887 at [25] noted a passage in the Appeal Panel’s decision in that case where it was said “each category within the PIRS evaluates a particular area of functional impairment” (emphasis added). Indeed, the submissions accompanying the application to appeal used “category” to refer to the “travel” scale or functional area in the following passage:

19. [57]

    In my view, it is clear that, when referring to “PIRS categories” in [24] and “categories” elsewhere, the Delegate was referring to the scales or functional areas and not classes within them.

20. [58]

    As to [25] of the Delegate’s reasons, it was submitted that in this paragraph she had simply not dealt with the submission that the activity of attending the RSL club once a month to play poker machines was not relevant to social and recreational activities but only to another category or categories. It is true that the Delegate does consider which class within “social or recreational functioning” the activity falls into. This, however, is because she was, at that point, addressing the last submission made in Ms Ballas’s submissions accompanying the application to appeal which concerned which class that activity fell into (see the last paragraph of those submissions quoted above). That was not the only argument addressed.

21. [59]

    It should be noted that at [25], in addition to considering which class the activity fell into, the Delegate said:

22. [60]

    While the paragraph may not be entirely elegant, it is sufficiently clear, in the context of the reasons as a whole, that the Delegate was here rejecting the argument that the activity in question could not fall within “social and recreational activity” because that category or scale was not “directed to solitary activities that do not involve interactions with other people”, as Ms Ballas submitted in her submissions in support of the application to appeal. The Delegate addressed that argument. In doing so, she accepted that regular activities that required active involvement, even if they were undertaken individually and, in that sense, were “solitary”, could still be relevant to assessing the “social and recreational activities” category of functional impairment, depending on the circumstances revealed by the history and clinical examination. In this way, she rejected Ms Ballas’s argument that such activities were not relevant the “social and recreational activities” category.

23. [61]

    In summary, a fair reading of the Delegate’s reasons as a whole reveals that she addressed the substance of Ms Ballas’s submission that the assessment had been made applying the wrong criteria and the MAC contained a demonstrable error because the Delegate took into account irrelevant considerations and failed to take into account relevant considerations. In particular, the Delegate:

    1. (1)

       at [21] and [22] adequately summarised Ms Ballas’s relevant submissions, thereby indicating that the Delegate understood what she was required to address;

    2. (2)

       at [23], [24] and [25], considered and rejected the submissions that:

    3. (3)

       at [23], [24] and [25] said, in effect, that these submissions should be rejected because the PIRS categories are generic and general in description and, to some extent, overlapping. They are not rigidly exclusive and which category applies is a matter within the AMS’s discretion based upon his or her clinical assessment and the history.

24. [62]

    For these reasons, I conclude that the Delegate has not misunderstood Ms Ballas’s submission or failed to address it. The Failure to Consider the Submission Ground is not made out.

Discretion as to Category Ground

1. [63]

   Mr McManamey did not generally contend that the Delegate made an error of law on the face of the record when she rejected the submission of Ms Ballas concerning which matters could be relevant to each category of functional impairment. This is understandable because such a contention would have been inconsistent with Ms Ballas’s position that the Delegate simply did not deal with that submission.

2. [64]

   Nonetheless, the Discretion as to Category Ground in par 3(c), was not formally abandoned, although in oral submissions it received no specific mention. In these circumstances, I shall deal with it briefly.

3. [65]

   This ground was formulated as the Delegate “erred in point of law when she considered that what matters were relevant to each category was a matter of discretion rather than an application of the [Guidelines]”.

4. [66]

   The problem with this ground is that it poses a false dichotomy and does not accurately reflect what the Delegate said. Her point was put in two ways in her reasons:

   1. (1)

      at [24], “[t]he PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS’s discretion based on his or her clinical assessment”;

   2. (2)

      at [25], “the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination.”

5. [67]

   The Delegate did not say that the question of what activities are relevant to each PIRS category is entirely a matter of discretion for the AMS and does not involve the application of the Guidelines. There was no such dichotomy in her comments.

6. [68]

   Moreover, there is no doubt that the PIRS categories are generic and general in description. They are only identified at a very high level of generality: “Self care and personal hygiene”; “Social and recreational activities”; “Travel”; “Social functioning (relationships)”; “Concentration, persistence and pace”; and “Employability”. The wording used to describe the categories suggests that some may overlap. For example, impairment in the ability to relate socially may well be reflected in both “social and recreational activities” as well as “social functioning (relationships)”. Similarly, impairment of “employability” may well involve, or result from, impairment in some or all of the other categories. The description of each scale, and the examples given in relation to each class from 1 to 5 within each scale in Tables 11.1 to 11.6, also suggests that overlap is quite possible between different PIRS categories. The PIRS categories, as specified in ch 11, do not appear to be rigidly separate and exclusive.

7. [69]

   Fairly understood, what the Delegate was saying was that the PIRS categories are as described in the Guidelines and are to be applied as required by the Guidelines. Because of their generality and the generic nature of the words used and examples given, however, application of the categories in accordance with the Guidelines involves the AMS using his or her professional expertise and judgment in the light of the clinical examination and any relevant history. There is nothing erroneous in such an observation.

8. [70]

   Accordingly, in so far as the Discretion as to Category Ground is still pressed, it has not been made out.

Conclusion and orders

1. [71]

   Since none of the substantive grounds has been made out, the consequential grounds do not need to be considered. The summons seeking judicial review should be dismissed.

2. [72]

   Nothing has been raised that would suggest that costs should not follow the event in this matter.

3. [73]

   Accordingly, the Court’s orders are:

   1. (1)

      The summons filed on 14 September 2018 is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs as agreed or assessed.