Rogers v Health Services Union NSW

A summons was filed on behalf of the plaintiff on 6 November 2024. An amended summons was filed on 4 March 2025. The plaintiff is seeking judicial review of a decision made by the second defendant on 16 August 2024.

The plaintiff is a former employee of the first defendant. The second defendant is an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act).

The third defendant is the President of the Personal Injury Commission of New South Wales.

The second and third defendants have filed submitting appearances.

The background starts with the plaintiff suffering a psychological injury during her employment by the first defendant. She had the role of a union organiser. Pursuant to ss 4(b)(i) and 15 of the Workers Compensation Act 1987 (NSW) (WCA), the plaintiff’s deemed date of injury is 13 July 2015.

The plaintiff made a successful claim for workers compensation under the WCA. She has received weekly benefits and treatment and other medical expenses.

In addition, the plaintiff, on 7 March 2023 claimed lump sum compensation. In order to receive such compensation, she needs to establish that she had suffered a degree of permanent impairment of at least 15% (ss 65A and 66 of the WCA).

In order to establish the 15%, the plaintiff relied on the opinion of a psychiatrist, Dr Snowdon, dated 1 March 2023. Dr Snowdon concluded that the plaintiff was suffering from a whole person impairment of 15%.

The first defendant, by its insurer, disputed Dr Snowdon’s assessment and sent the plaintiff to a different psychiatrist, Dr Malik, for his opinion. Dr Malik saw the plaintiff on 25 October 2023 and provided a report dated 20 November 2023. Dr Malik disagreed with Dr Snowdon. Dr Malik assessed the plaintiff’s whole person impairment at 6%.

On 7 February 2024 the plaintiff filed an application in the Personal Injury Commission of New South Wales to resolve the dispute as to her whole person impairment. The difference between the respective assessments amounted to a medical dispute as defined in s 319 of the WIM Act.

The medical dispute led to the Registrar of the Commission referring the dispute to a medical assessor pursuant to s 322 of the WIM Act.

The appointed medical assessor was Dr Mason, a psychiatrist, who examined the plaintiff on 12 March 2024 and then issued a Medical Assessment Certificate on 14 March 2024. The certificate stated that the plaintiff’s degree of whole person impairment was 15%.

Once again, the first defendant did not agree with the 15% assessment and, on 11 April 2024, filed an appeal pursuant to s 327 of the WIM Act. The appeal was heard by the second defendant (a Commission member sitting with two medical assessors). A decision was given on 16 August 2024. The Appeal Panel set aside Dr Mason’s certificate.

The Appeal Panel then went on to assess the plaintiff’s whole person impairment. It arrived at 7%. The Appeal Panel issued a new certificate dated 16 August 2024 stipulating a total whole person impairment of 7%.

The plaintiff says the Appeal Panel’s decision was erroneous because, partially in my words:

“Class” references are to the system of rating applied by the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed.

Although there are six grounds of appeal they significantly overlap and in practical terms all centre on the same issue; namely whether the classification made by the Appeal Panel in respect of travel was erroneous in a manner that justifies judicial review.

In respect of travel, which is at the core of these proceedings, Table 11.3 provides this guide:

Once a class of impairment has been decided the class is translated into a score of points through the formula set out from Ch 11.16, including the conversion Table 11.7.

Dr Snowdon put the assessment for travel into Class 1. The reason he gave was:

Dr Malik placed the plaintiff in Class 2. He gave this reason:

Dr Mason, the medical assessor, said the assessment was in Class 3. His reason was:

After finding that a Class 3 assessment was “glaringly improbable”, the Appeal Panel thought the appropriate assessment for the plaintiff was Class 2. The reason was:

There is no suggestion that any of the medical practitioners took an incorrect history. The first defendant did suggest that there was no deterioration in the plaintiff’s condition as she moved through the periods of the above three assessments. It was also suggested that there may have been some improvement by the time the plaintiff was seen by Dr Malik.

The Appeal Panel was also of the view that the respondent’s psychological condition had not changed since she had consulted Drs Snowdon and Malik. Its reasons state at [35]:

In order to assess whether there had been deterioration, I think it important to look beyond the simple reasons that each doctor gave for their respective classifications. Dr Snowdon’s description in respect of travel bespeaks very little disability and even refers to the plaintiff being “at ease” when travelling.

Dr Malik examined and assessed the plaintiff about eight months later. By this time, the description in relation to travel is significantly different. The plaintiff now only feels safe because the car doors are locked; she can only travel to familiar places without a support person; and she suffers anxiety when going to unfamiliar places. In my view there is a very clear deterioration by the time the plaintiff sees Dr Malik. This is confirmed by Dr Malik now placing the plaintiff, for travel, within Class 2 whereas Dr Snowdon had her in Class 1.

Dr Mason saw the plaintiff about five months after Dr Malik. His history includes the following:

In respect of her employment, the plaintiff works as a telephone consultant which she does from home. However, as Dr Mason recorded:

My reading of the history given to Dr Mason is of a much worse condition, in respect of travel, than that given to Dr Malik. The Appeal Panel was wrong to observe that there had been no change in the respondent’s condition.

I do agree with the first defendant about the criticism made by the plaintiff that the panel had not itself assessed the plaintiff. I do not think this criticism is made out. The Appeal Panel could not have conducted a further assessment. A referral would have been needed under s 329. I do not see why the panel could not rely on the previous assessments, especially bearing in mind that it was conducting an appeal from Dr Mason’s assessment. Of course, use of the previous assessments requires that they be interpreted correctly.

The deterioration I have outlined above might, logically, generate a movement of the plaintiff from Class 2 to Class 3.

However, placing the plaintiff into Class 3 raises the question of the force of the example contained within the PIRS rating Scale, and in particular whether any travel “away from own residence without support person” necessarily excluded placement within Class 3. The first defendant submitted that the example was so simple and so clear that any factual circumstances outside the example precluded placement within Class 3. Therefore, the plaintiff driving locally and to her GP without a support person of itself prevented the plaintiff from being placed within Class 3.

The first defendant did concede that the plaintiff travelling to her work seminars where she was escorted from her car to the building did qualify as travelling with a support person, but the first defendant emphasised that the local journeys unquestionably fell outside of the example.

In turn, argued the first defendant, the Appeal Panel, noting the local travel, was correct to find that the Class 3 assessment was “glaringly improbable”. This straightforward approach, submitted the first defendant, was adequately explained in the Appeal Panel’s decision at [34] and [36]:

The issue then arises as to the weight to be given to the example. In other words, does a particular journey (such as to the GP or the local shops), or even one instance of ‘solo’ travel without a support person, necessarily disqualify a Class 3 assessment?

Chapter 11 relates to the “method for assessing psychiatric impairment”. Chapter 11.12 states:

In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J stated, at [65]:

I think it clear that the examples are not mandatory rules. It is not necessary to fit perfectly within or outside of a particular example in order to fall, or not fall, into a particular class. While I agree with the first defendant that the driving example is simple, I disagree that it is therefore prescriptive. I think this is emphasised by Chapter 11.6, which states:

The just quoted passage, taken with what is stated in chapter 11.12, and the observations of Garling J in Jenkins, combine, I think, to compel these conclusions:

The severity of the symptoms given to Dr Mason, which I have quoted above, are consequently available to assist in the placement of the plaintiff within the appropriate class. Further I note the Principles of Assessment in Ch 1.6 which state that an assessment “involves clinical assessment of the claimant as they present on the day of assessment …” giving added strength to Dr Mason’s history which was the most recent.

The approach taken by the Appeal Panel, as I read the reasons, is that by simply having journeys where there was no support person, the plaintiff was not able to fit within Class 3.

In Jenkins, Garling J made the point, at [73] that:

The position is different here, the Appeal Panel, by pointing out that the histories given to the doctors included an ability to drive independently, then reached the “glaringly improbable” finding in [34], and then in [36] said that driving without a support person, of itself, was “incompatible with a Class 3 assessment.”

The Appeal Panel, in my opinion, made an error on the face of the record, as well as in law, by treating the example in the Class 3 guideline as prescriptive and not as a guide capable of being surmounted by other relevant facts, including the history given by the plaintiff to Dr Mason.

The conclusion I have just reached is enough to entitle the plaintiff to succeed. There are nevertheless two other matters that I wish to comment upon. Both parties referred me to the judgment of Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887, and in particular to [24]:

The first defendant approached the above passage on the basis that it set out the principles to be applied by an Appeal Panel in deciding if intervention was appropriate. With respect, I do not think his Honour was intending to make a statement of principle; rather he was describing the approach that the Appeal Panel had taken in the case before him.

The first defendant also submitted that the Appeal Panel was correct to overturn the decision of Dr Mason because of an unsupported reasoning process. This was illustrated by Dr Mason failing to give reasons for disagreeing with Drs Snowdon and Malik about their conclusions on travel.

I think there is merit in the submission, but the failings of the medical assessor are not the fundamental issue here, rather it is the existence, or otherwise, of failings on the part of the Appeal Panel. I have found that there was such a failing.

There is however a consequence arising from the submissions made about Dr Mason’s errors. The consequence is that the primary relief sought by the plaintiff, namely that the Appeal Panel’s decision be set aside and Dr Mason’s decision be restored, is not appropriate.

Rather, as submitted by the first defendant, the correct course to take (which is also the plaintiff’s alternative suggestion) is to make orders similar to those made by Campbell J in Ferguson.