Keelan v Pearl Beach Real Estate Pty Ltd

1. [1]

   On 13 June 2024, the plaintiff filed a summons for judicial review of a decision dated 13 March 2024, given by an Appeal Panel appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act).

2. [2]

   The orders sought are pursuant to s 69 of the Supreme Court Act 1970 (NSW).

3. [3]

   The first defendant was the plaintiff’s employer at the time she was injured. The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is made up of the members of the Appeal Panel.

4. [4]

   The second and third defendants have filed submitting appearances, save as to costs.

5. [5]

   The summons is supported by an affidavit of Mr Grant Watson affirmed on 15 July 2024. He is the plaintiff’s solicitor. His affidavit annexes the Statement of Reasons given by the Appeal Panel together with the material that was before the Appeal Panel.

6. [6]

   The principles for judicial review were set out by the High Court in Plaintiff M64-2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [23]-[25]:

7. [7]

   It is also important to bear in mind these comments by Basten AJA in Jarvis v Allianz Australia Insurance Limited [2022] NSWCA 232 at [41]:

8. [8]

   As to “the record”, Basten AJ very recently stated in Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380, at [41]:

9. [9]

   Specifically in relation to medical panels, I was referred to this passage from the High Court decision in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, at [47]:

10. [10]

    Finally, in respect of governing principles, I was taken to Ballas v Department of Education (State of NSW) [2020] NSWCA 86, in particular at [93]-[94]:

Background

1. [11]

   The plaintiff was born in 1959. She now lives in Queensland. Around 2014 she completed a certificate in real estate. In February 2018, after working in various real estate jobs, the plaintiff was employed as a holiday property manager for the first defendant. The reasons of the Appeal Panel described her as having been employed as a “hospitality manager”. This is obviously wrong although the mistake is of little consequence.

2. [12]

   In November 2018, the plaintiff was subjected to yelling and verbal abuse from her employer’s sales manager. The incident seems to have arisen from the plaintiff apparently contradicting orders that had been given to a cleaner in respect of moving barbed wire and other material from a property. The plaintiff had told the cleaner not to move the material because she thought the task was more appropriate to a handyman than a cleaner.

3. [13]

   According to the plaintiff the sales manager abused her “in an angry and dramatic fashion” in the office in front of other people. The plaintiff left the office and told her boss what had happened. Her boss responded with a message stating: “when you walked out was that your resignation?”. The plaintiff replied “no, it was not”.

4. [14]

   After the incident the plaintiff felt that, in the office, “the tension was palpable”. She felt ostracised by the sales manager and by her boss. They treated her “as a less than human”. The plaintiff was subjected to unseemly conduct by the sales manager. She was not supported by the owner.

5. [15]

   By February 2019, the plaintiff had been threatened “with the sack” for no given reason. The plaintiff consulted a lawyer and left work in February 2019. She began psychological treatment including antidepressant medication. She lost her appetite and consequently she lost weight. She became “depressed, hopeless, and socially withdrawn.”

6. [16]

   The plaintiff, through her lawyers, made a workers compensation claim arising from her asserted psychological injury. The claim was accepted by the relevant insurer. The plaintiff then made a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW).

7. [17]

   In 2020 the plaintiff, and her husband, moved to Queensland, for a “fresh start”. Unfortunately, the fresh start did not eventuate, and the plaintiff continued to suffer from a diminished mental health. She could not concentrate, was anxious in social settings and generally lost interest in normal activities.

8. [18]

   The plaintiff’s solicitors referred her to a consultant psychiatrist, Dr Allan, for a medico-legal opinion. Dr Allan saw the plaintiff on 11 March 2020 and produced a report dated 13 March 2020. Dr Allan diagnosed an “Adjustment Disorder with depressed and anxious mood as per the DSM 5.” He thought that “Employment was the whole contributing factor to Ms Keelan’s injury.”

9. [19]

   Dr Allan assessed the plaintiff’s Whole Person Impairment (WPI), as dictated by the NSW workers compensation guidelines for the evaluation of permanent impairment (4th edition, reissued 1 March 2021), and arrived at a figure of 15%. The assessment involves the application of the Psychiatric Impairment Rating Scale (PIRS).

10. [20]

    The employer’s insurer did not accept the 15% assessment and referred the plaintiff for an assessment by Dr Anand, also a psychiatrist, which occurred on 19 June 2020. In his report of 24 June 2020, Dr Anand concluded that the plaintiff had a WPI of 7%.

11. [21]

    The contrast between the two medical opinions led to the referral of the plaintiff to a Medical Assessor, Prof Glozier. On 28 September 2020 Prof Glozier issued a Medical Assessment Certificate stating that the plaintiff’s WPI was 7%.

12. [22]

    On 6 October 2020, the plaintiff filed an Election to Discontinue Proceedings. This was a reaction to Prof Glozier’s assessment.

13. [23]

    The plaintiff however continued to suffer mental health problems and in fact her condition deteriorated. This led to her solicitors again referring her to Dr Allan whom she saw on 24 August 2022. In his report of the same date Dr Allan came to a WPI assessment of 19%.

14. [24]

    Dr Allan’s second assessment led the plaintiff to re-activate her claim for lump sum compensation. On 28 February 2023, the plaintiff appealed against the decision of the Medical Assessor (Prof Glozier) pursuant to s 327 of the 1998 Act. The matter was then referred back to Prof Glozier under s 327(6).

15. [25]

    Prof Glozier examined the plaintiff remotely on 25 October 2023, and then, on 1 November 2023, issued another Medical Assessment Certificate stating the plaintiff had a WPI of 9%.

16. [26]

    The 9% was arrived through the application of the above-mentioned guidelines, in particular Ch 11 which relates to “Psychiatric and psychological disorders”.

17. [27]

    In brief, the assessment requires the use of a psychiatric rating scale (Ch 11.11). The assessor decides on a score based on the tables (Tables 11.1 to 11.6), then totals the score. Next a median score is worked out (Ch 11.4) and then an aggregate score (Ch 11.17). Finally, the assessor applies a conversion table (Table 11.7) to reach the WPI percentage. Notably a half score in the median score calculation is rounded up. Thus, a median score of 2.5 becomes a score of 3.

18. [28]

    I have mentioned the scoring method because one of the plaintiff’s submissions is that if the assessor had not made an error in the psychiatric impairment rating (Table 11.1 to 11.6) then her aggregate score would have increased and her WPI percentage, after the application of the conversion table, would have been above 15%.

19. [29]

    Following Prof Glozier’s 9% assessment, the plaintiff then lodged an appeal from Prof Glozier’s assessment. The appeal was made under ss 327(3)(c) and 327(3)(d) of the 1998 Act.

20. [30]

    On 13 March 2024, the Appeal Panel rejected the appeal and confirmed the certificate that had been issued by Prof Glozier on 1 November 2023. The reasons given by the Appeal Panel are the subject of the application for judicial review.

The plaintiff’s contentions about the Appeal Panel’s reasons

1. [31]

   The complaints fall into 2 categories:

   1. (1)

      The Appeal Panel did not give sufficient reasons for rejecting the plaintiff’s submissions. The Appeal Panel’s reliance on the “presumption of regularity”, in particular as to its failure to properly deal with Prof Glozier not referring to a statement by the plaintiff dated 1 December 2022, was misplaced. In relying on the presumption, essentially to find the assessor had regard to the plaintiff’s statement of the plaintiff the Appeal Panel ignored a number of important facts, for example about the plaintiff’s difficulties with reading and watching television.

   2. (2)

      The Appeal Panel did not consider errors allegedly made by the assessor in performing the PIRS assessment. In particular the assessor ‘double counted’ a history relating to the plaintiff playing a computer game and ignored the effect of her condition on her capacity to read.

2. [32]

   The first defendant responded that the plaintiff’s complaints were “misconceived”. The Appeal Panel did “meaningfully engage” with the plaintiff’s appeal and the panel was correct to “endorse” the assessor’s application of the PIRS. Further, if there was any error in the assessor’s certificate, the Appeal Panel correctly found the error did not make a material difference.

The presumption of regularity

1. [33]

   The Appeal Panel used the presumption to overcome the absence of any reference by the assessor to the plaintiff’s statement of 1 December 2022. The panel, at [49] said:

2. [34]

   Reference is then made to Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] and to Jones v The Registrar WCC [2010] NSWSC 481 at [50].

3. [35]

   Paragraph 36 in Bojko states:

4. [36]

   Paragraph 50 in Jones states:

5. [37]

   I do not see any relevance of the passage from Jones to the present matter. In respect of Bojko, perhaps the Appeal Panel’s reference to the plaintiff being described as a “hospitality manager” is an example of looseness of language, but that is very different to a complaint that the assessor has effectively ignored the plaintiff’s updated statement. The Appeal Panel points out that an assessor “is not required to specify each individual item of the evidence on which the Medical Assessor has relied to compose the relevant history” and that the assessor refers to the documentation provided (which includes the statement). The Appeal Panel then says that it “infers that the Medical Assessor did have regard to the appellant’s statement of 1 December 2022.”

6. [38]

   I have no difficulty with the Appeal Panel drawing an inference or relying on the presumption of regularity as described in Bojko. The difference here however is the nature of the task being undertaken by the Medical Assessor. He was specifically being asked to review a matter in which there had been a deterioration of the plaintiff’s condition. The Medical Assessor actually found a deterioration, noting that his WPI assessment went from 7% to 9%.

7. [39]

   A deterioration must be, if only in part, a product of an up-to-date history of the plaintiff. It is not “construing minutely” to point out that the fresh history should have been considered and analysed in examining the deterioration.

8. [40]

   The Medical Assessor cut and pasted a good deal of the history that he had formulated in his first assessment in 2020. There may not be anything wrong in doing so, but it is the ‘old’ history, and the Medical Assessor was being asked to consider the ‘new’ history.

9. [41]

   The vice manifests in the Medical Assessor’s actual decision. For example, under ‘History’, the Medical Assessor states:

10. [42]

    Then under the heading ‘The Facts on which the Assessment is Based’, the Medical Assessor states:

11. [43]

    In sharp contrast, her statement reads at [69]:

12. [44]

    In his first assessment the Medical Assessor records the plaintiff “has never been a reader, TV watcher, or interested in more ‘cultural’ activities as she is ‘not a sitting around person’ and ‘enjoys meeting people’.” “Never been a reader” is very different to “I do not read much anymore”. The history given to Dr Anand on 14 April 2023 (report dated 24 April 2023) was that she had been an “avid reader”. Dr Anand’s report was one of the “attached documents” which, on the presumption of regularity, had been read by the Medical Assessor.

13. [45]

    The Medical Assessor makes no mention of reading. At one level the lack of mention of reading is a minor matter because there were other indications relating to the plaintiff’s ability to concentrate. But, on the other hand, submissions had been made about reading, Dr Anand referred to the plaintiff’s reading, and the plaintiff’s 1 December 2022 statement makes a specific point about her reading.

14. [46]

    It might be argued that the absence of reference to the statement is of no consequence because Prof Glozier had updated the history, and also had access to, and referred to, the medical reports from Drs Allan and Anand. If the statement did not add any material fact, then the failure to refer to it might be ignored.

15. [47]

    However, the statement does include the plaintiff’s observations about her reading. In addition, the plaintiff’s solicitors made specific submissions about the statement and about reading. The plaintiff had stated:

16. [48]

    The solicitors pointed out that the certificate was “silent on the topic of reading”. The Appeal Panel, other than reciting the submissions about reading, simply does not deal with them.

17. [49]

    In addition, reading is specifically mentioned as an example in the PIRS assessment guideline. In my view, the Appeal Panel’s treatment of the 1 December 2022 statement is wrongly and inappropriately dealt with as an inference, or an assumption covered by the presumption of regularity.

18. [50]

    I will put my conclusion in a different way: if the statement had contained no important information, or perhaps was no more than a written expression of the history given to Prof Glozier on 25 October 2023, then reliance on the presumption of regularity may have been adequate. However, the updated statement did contain significant extra information, especially about reading and concentration, and specific submissions had been made about the statement. The Medical Assessor should have commented on the statement. The Appeal Panel should not have ignored the assessor’s error by simply placing it under the presumption of regularity.

19. [51]

    Accordingly, I think there is an error on the face of the record. This might also be described as denial of procedural fairness to the plaintiff whose statement and written submissions have not received appropriate, if any, consideration.

20. [52]

    I add here that the first defendant’s support of the inference that the Appeal Panel draws in [50] of its reasons is an inference that must be regarded with some scepticism. The inference is said to arise from the fact that Prof Glozier had “updated the history” that he had previously obtained. But equally, it might be said, an inference could be drawn that he had not read the plaintiff’s statement because in updating the history one could infer that he would have made reference to the statement.

21. [53]

    As already noted, Prof Glozier ‘cuts and pastes’ large parts of the reasons behind his first certificate. His original reasons stated: “Ms Keelan’s history she gave today was markedly different to that in her statement.” There is no corresponding observation in relation to the latest statement. Thus, again, an inference could equally be drawn to the opposite effect to that drawn by the Appeal Panel.

22. [54]

    Therefore, the inference drawn by the Appeal Panel is not the only reasonable inference that might be drawn from Prof Glozier’s certificate.

23. [55]

    As I have said above, I am satisfied that there are demonstrable errors in both Prof Glozier’s second certificate and in the Appeal Panel’s reasons. The Appeal Panel pointed out the asserted errors made by Prof Glozier, but did not deal with them. In addition to an error on the face of the record, I think my conclusions also establish jurisdictional error.

Double counting

1. [56]

   It is now not necessary to deal with the plaintiff’s submission about the completion of the PIRS process, but I will make the following comments.

2. [57]

   The plaintiff submitted that the score given for Concentration, Persistence and Pace should have been ‘3’, the same score as that assessed by Drs Allan and Anand.

3. [58]

   The plaintiff submitted that watching TV should not have been included in the Concentration, Persistence and Pace category as well as in the Social and Recreational Activities category. This was a product of Ballas, in particular as seen in [93] and [94], quoted above. The plaintiff referred to the placing of computer games in two separate categories as double counting.

4. [59]

   The defendant accepted that Ballas required a correct classification and that failure to do so was jurisdictional error. But, the defendant submitted, there was no reason why particular conduct could not correctly fall within more than one category. Thus, in this case, playing a computer game was social activity because it was played with other persons (therefore correctly in category 11.2), and it also evidenced concentration and so also fell into category 11.5.

5. [60]

   The defendant gave the example of a person going to a knitting group. The person would be engaging in a social activity and also demonstrating concentration in performing the knitting. The difficulty with this example is that it assumes a degree of skill in knitting. The same point may be made in respect of other assumptions made by the assessor:

   1. (1)

      Winning a computer game was a measure of Concentration, Persistence and Pace. The assessor stated: “she undertakes some hours of an engaging computer game ...” The history was: “When she gets up, she spends a couple of hours doing a house design game. This involves decorating homes using in-game money and rewards and has a multi-player aspect to it where everyone votes on each other’s decorations and decides who wins. She has occasionally won these.”

   2. (2)

      The computer game may well be engaging. However, to assume it is engaging and that the plaintiff has described a strength by occasionally winning ignores the fact that winning is not a technical achievement, but rather a peer review with an unknown number of fellow players.

   3. (3)

      Under category 11.5 the assessor concluded that the plaintiff “prefers to watch cognitively-demanding television shows.” The history was: “She prefers shows that she can be involved in and that challenge her, such as quiz shows, always follows the news and watches other shows that engage her cognitively.” I think it falls within judicial notice to observe that the range of quiz shows on television is vast, including those that are basic or humour based to those reserved for the very intelligent. I do not think that watching and playing an unidentified quiz show is enough to elevate a cognitive ranking. I should add here that I have also made an assumption; namely that “The Chaser” referred to by the plaintiff is the ABC political satire and not The Chase quiz game show.

6. [61]

   I do however accept that a particular activity might fall into more than one category. I agree with the defendant that Ballas is stating that the categorization must be correct, but not that a particular activity cannot fit into more than one category. As pointed out by Basten AJ in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929, at [72]:

7. [62]

   However, the point being made here is more akin to that made in Quintiliani-Johns v Secretary Department of Education [2024] NSWSC 1200 where Mitchelmore J dealt with a similar circumstance in this way at [53]-[55]:

8. [63]

   In the present case, although referring to the plaintiff’s submissions, both the assessor and the Appeal Panel simply did not deal with the submissions concerning the plaintiff’s statement.

9. [64]

   Finally, the defendant submitted that any error on the part of the assessor could be overlooked because the Appeal Panel correctly found that the error was not material.

10. [65]

    I think this point is effectively subsumed within my above conclusions. Had the assessor and the Appeal Panel given due consideration to the plaintiff’s statement, and in particular to the evidence concerning reading, then a different result may have been reached, in turn producing a higher score on the PIRS assessment.

11. [66]

    I make the following orders:

    1. (1)

       An order under s 69 of the Supreme Court Act 1970 (NSW), setting aside the certificate and reasons dated 13 March 2024 given by an Appeal Panel appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

    2. (2)

       An order in the nature of Mandamus remitting the matter to the Second Defendant for redetermination according to law.

    3. (3)

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

    4. (4)

       No order is made as to costs in respect of the second and third defendants.