Botha v Secretary, NSW Department of Customer Service

Supreme Court of NSW|2024-06-14|Before: Stern JA

Background to the medical assessment

The plaintiff sustained a psychiatric injury by reason of bullying and harassment from around May 2019 by her direct manager in her employment with the first defendant. From June 2019 her mental health deteriorated. This culminated in the plaintiff being placed on special leave on 13 September 2019 and not returning to work from that date. The deemed date of injury was 28 June 2019.
On 3 March 2021, relying upon a medical report of Dr Abdal Khan dated 1 March 2021, the plaintiff made a claim for lump sum compensation for permanent impairment under s 66 of the Compensation Act. In his report dated 1 March 2021, Dr Khan assessed the plaintiff as falling within Class 3 of the Social and Recreational PIRS and having a 19% whole person impairment. By letter dated 27 May 2021 the first defendant disputed the plaintiff's claim for permanent impairment, relying upon reports dated 12 December 2019 and 28 April 2021 from Dr Clayton Smith who considered that the plaintiff had not yet reached maximum medical improvement. This "medical dispute" (within the meaning of s 319 of the Management Act) was referred by the President of the Commission for medical assessment.

Assessment by the Medical Assessor

The Medical Assessor assessed the plaintiff on 4 April 2023 by video. The Medical Assessor stated in the Certificate that he had based his assessment of whole person impairment on the clinical examination and review of the documentation submitted by the parties. He referred to the PIRS table, attached to the Certificate, as setting out his opinion and assessment of whole person impairment. He explained that in making that assessment he had taken account of the provided reports, the plaintiff's reported history and the mental state examination. The Medical Assessor assessed the plaintiff's permanent impairment at 9% including because he found that she fell within Class 2, being mild impairment, on the Social and Recreational PIRS. The reason he gave in the PIRS table for this was: "She attends regular social recreational activities with her family and friends. Overall, she has been attending less since her injury as she is socially anxious."
In the body of the Certificate, the Medical Assessor recorded the following matters of particular relevance to his assessment of the plaintiff's impairment in relation to social and recreational activities.
Under the heading History Relating to the Injury - social activities/ADL, the Medical Assessor noted: "She has made a couple of friends since she moved to Cairns, including a close friend she has known for about two years now, who is a retired nurse. She walks her dog to the nurse's house for a catch-up, or the nurse will come over and visit her every couple of days. The nurse's sister has also moved up to Cairns and Ms Botha sees her too. There is a married couple who lives just around the corner, and they visit each other twice a month. She has known them for many years. Recently, they had a small party because the nurse's sister celebrated her 70th birthday. The party was at Ms Botha's home last week. She explained her husband is good with South African cuisine and did a barbecue, and a friend brought over a cake. She felt the party was okay because it was not big, only about five people, comprising of the friends she has in the neighbourhood, she could engage with them well and enjoyed it. Her step-mother tends to pop in for a coffee weekly. Her father talks to her regularly but only sees her once a month. Normally, Ms Botha likes to travel but she does not do this anymore. She also enjoyed art and reading books about art or visiting art galleries, and this has stopped as well. She is not painting anymore."
Under the heading, Reasons for Assessment, the Medical Assessor explained why his assessment of which Class the plaintiff fell in on the Social and Recreational PIRS differed from that of Dr Khan: "In terms of Ms Botha's impairment assessment, Dr Khan rated social and recreation activities as 3 and noted that she engaged in some solitary activities She walks her dog regularly or walks with her husband for therapeutic purposes and remains socially withdrawn. He did not record any social or recreational activities in his report. I noted when Dr Smith assessed her, she was still engaged in some social and recreational activities including a birthday party recently. She enjoys visiting each other and having small celebrations at home, including a party in the previous week. She struggles in a large party or with strangers, and given her current living circumstances with only a few friends locally, she is managing and can enjoy regular social and recreational activities with people that she trusts and knows well, and therefore I rated 2."
It is clear that the phrase "She enjoys visiting each other" must reflect a typographical error. In context, the likely meaning of this is that the plaintiff and her friends enjoy visiting each other.
The Medical Assessor "noted previous files" including: "Dr Clayton Smith, IME psychiatrist provided a report dated 28 April 2021, noted prior to relocating to Cairns two weeks ago, Ms Botha had been living as a hermit. She now sees her parents living in Cairns. She suffered persistent agoraphobia and has been working on desensitisation. She goes to the shops with her husband and has been to the beach but not on her own. She never drives a car and only recently got an Australian learner's licence and wanted to drive but said she would have trouble concentrating. Ms Botha has friends in Cairns around the corner and most of the social contacts are in Sydney. They have not had visitors yet."
The Medical Assessor also recorded that the plaintiff reported to him that she no longer enjoys some of the activities she normally enjoyed, that she was socially anxious and was triggered when she "goes out, or if someone related to the Authority tried to contact her on Linked-In", and that she generally does not like to go out. He also noted that there was some fluctuation but no real change in the plaintiff's psychological injury since his previous assessment on 20 August 2021.

The appeal proceedings

On 10 May 2023 the plaintiff lodged an application to appeal against the decision of the Medical Assessor under s 327 of the Management Act. The plaintiff's sole ground of appeal, under s 327(3)(d) of the Management Act, was that the Certificate contained a demonstrable error. In essence, the demonstrable error relied upon was that the Medical Assessor's assessment that the plaintiff fell in Class 2 on the Social and Recreational PIRS was not supported by, or was illogical having regard to, the information recorded in the certificate or by his substantial findings. This ground related solely to the Medical Assessor's finding that the plaintiff "attends regular social recreational activities". The plaintiff submitted that that should be construed as a conclusion that the plaintiff left her home to attend such activities because: 1. The Medical Assessor's use of the word "attends" which, she submitted, should be construed as connoting activities which involved leaving a worker's own home and going elsewhere; and 2. The examples in Class 2 of table 11.2 in the Guidelines (Social and Recreational PIRS) specifically refer to the worker "going out" to social activities, which again suggests that, to be relevant, social and recreational activities must involve a worker taking part on activities outside their home.
The nub of the plaintiff's ground of appeal was encapsulated in her submissions attached to the application to appeal at [16]: "In short, Dr Hong does not record any information or any findings about Ms. Botha's ability to leave the house for social activities, the frequency at which she may be able to do so, nor whether she has any capacity to leave the house independently or with a support person. Dr Hong's Class 2 decision is, with reference to what is recorded in the body of the report illogical. It cannot support the conclusion."
On 20 October 2023 the Appeal Panel confirmed the Certificate issued on 12 April 2023. The Appeal Panel, at [18], summarised the submission of the plaintiff on appeal as: "…the Medical Assessor erred in his assessment under one of the PIRS categories, namely social and recreational activities for failures that included the following: (a) when he assessed a Class 2 and a Class 3 should have been assessed, and (b) his conclusion that a Class 2 should be rated that is not supported by the evidence or his reasoning."
As to the proper approach of the Medical Assessor, the Appeal Panel found at [20] that the Medical Assessor must bring his clinical expertise to bear and exercise clinical judgment when assessing impairment under the PIRS, and that that assessment is not to be based on self-report alone. The Appeal Panel, at [20] and [27] directed themselves that they could not disturb ratings under the PIRS for mere disagreement but must be satisfied that there was demonstrable error or assessment on the basis of incorrect criteria.
At [32], the Appeal Panel recorded in full the plaintiff's submission set out at [40] above. The Appeal Panel, having already extracted significant parts of the Medical Assessor's assessment, at [33] extracted the Medical Assessor's explanation, set out above at [35], for why he had differed from Dr Khan's assessment of the plaintiff on the Social and Recreational PIRS.
The Appeal Panel then concluded at [34]: "The Appeal Panel can discern no error in the rating of a mild impairment. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. The assessment of Class 2 is clearly in accordance with the criteria in the Guidelines. Class 2 is the best fit and the Medical Assessor has assessed in accordance with the correct criteria, provided reasons for why he did so, specifically why he was of the view that the appellant was less impaired than when assessed two years previously, and the Appeal Panel can discern no error."

The Plaintiff's Submissions

As explained in oral submissions, the overarching submission of the plaintiff is that the Appeal Panel failed to consider or engage with the plaintiff's sole appeal ground, which relied upon demonstrable error of the Medical Assessor in reaching a conclusion that the plaintiff fell within Class 2 on the Social and Recreational PIRS when that conclusion was illogical having regard to what is recorded in the body of the Certificate. That overarching submission encapsulates the complaint of the plaintiff under both of the grounds of review in the further amended summons.
In support of this, the plaintiff contends, first, that on a proper construction of the Medical Assessor's conclusion (as set out in the Social and Recreational PIRS) that the plaintiff "attends regular social recreational activities with her family and friends", the Medical Assessor has made an assessment which relies upon activities which the plaintiff engages in outside of her home. This, she contends, flows from the Medical Assessor's use of the word "attends".
The plaintiff seeks to support this contention by reference to the language in the examples of activities that would lead to a categorisation of Class 2 on the Social and Recreational PIRS as set out in the Guidelines. In this regard the plaintiff relies in particular on the fact that the examples against Class 2 on the Social and Recreational PIRS in the Guidelines refer to a worker "occasionally [going] out to such events", referring back to "social activities that are age, sex and culturally appropriate" (as referred to in the examples for Class 1 on the Social and Recreational PIRS). The plaintiff contends that an essential component of social and recreational activities in Social and Recreational PIRS is thus that they involve leaving the person's own home for such activities without a support person. Having regard to this, she submits, the Medical Assessor's conclusion that the plaintiff regularly "attends" social activities should be construed as a conclusion that she goes out of her home to do so.
As counsel for the plaintiff explained in oral submissions, the plaintiff did not contend before the Appeal Panel that the Medical Assessor erred in his construction of the Social and Recreational PIRS in the Guidelines. Rather, her contention as to construction of the Social and Recreational PIRS is relied upon solely in support of her contention as to the proper construction of the Medical Assessor's conclusion as to categorisation. The plaintiff thus does not contend in this application for review that the Appeal Panel erred in in construing the Social and Recreational PIRS.
The plaintiff accepts that if she is wrong that the Medical Assessor's conclusion as to categorisation on the Social and Recreational PIRS should be construed as a conclusion as to the plaintiff's ability to attend social recreational activities outside her house, then she cannot succeed in this application for review.
Second, the plaintiff contends that there is nothing in the body of the Certificate which supports the Medical Assessor's conclusion, construed to refer only to activities outside the plaintiff's home, in particular the Medical Assessor's conclusion that the plaintiff "regularly" attended such activities. Whilst the Medical Assessor refers to some engagement of the plaintiff with family and friends, the plaintiff's submission is that the activities identified in the body of the Certificate do not have the necessary frequency or repetition to amount to "regular" attendance at activities outside her home. As to this, the plaintiff submits that the frequency of a worker engaging in a social and recreational activity is a key determinant of which category they fall within on the Social and Recreational PIRS.
To the extent that the Medical Assessor identifies that the plaintiff walks her dog to a friend's house for a catch up, or that that friend visits her "every couple of days", the plaintiff submits that it is not clear from the body of the Certificate how often or regularly the plaintiff visits her friend as opposed to the friend visiting her. The plaintiff makes a similar submission as regards the Medical Assessor's finding that the plaintiff and a married couple who live around the corner "visit each other twice a month". Moreover, the plaintiff submits that engaging in a particular social activity "twice a month" cannot, of itself, amount to a "regular" engagement in such activity, or at least "not the type of regularity" which is referred to in the Medical Assessor's conclusion.
As to the small party of only about 5 people that the plaintiff hosted for her friend's 70th birthday, which the Medical Assessor recorded that the plaintiff enjoyed and at which she engaged well with her friends, the plaintiff submits because this was at the plaintiff's home and because it was not regular (in the sense that was only the second party that had happened in three years) it cannot support the Medical Assessor's conclusion that she attends regular social activities with her friends and family. Overall, she submits that the matters recorded in the Certificate do not support a conclusion that she regularly attends social and recreational activities outside of her home.
The plaintiff also relies upon passages from Dr Smith's report of 28 April 2021, in particular that the plaintiff suffered from persistent agoraphobia, and had been living as a hermit prior to moving to Cairns two weeks prior to Dr Smith's assessment. The plaintiff submits that these observations of Dr Smith were implicitly adopted by the Medical Assessor in his first certificate dated 6 September 2021. The plaintiff submits that as the Medical Assessor found, under the heading summary of injuries and diagnoses, that the plaintiff had not "gained further improvement" in the Certificate dated 12 April 2023, it should be inferred that the Medical Assessor found that the matters observed by Dr Smith in April 2021 reflected the extent of the plaintiff's ability to engage in social and recreational activities at the time of the Medical Assessor's assessment of the plaintiff on 4 April 2023. This is a further matter relied upon in support of the contention that the Medical Assessor's findings in the body of the report do not support his conclusion as to categorisation on the Social and Recreational PIRS. To the extent that Dr Smith's findings record matters prior to the plaintiff moving to Cairns in 2021, it is difficult to see how this is relevant to the issues before the Appeal Panel, and thus on this application. To the extent that Dr Smith's findings relate to the plaintiff suffering from persistent agoraphobia, even if picked up by the Medical Assessor's finding that the plaintiff had not gained further improvement, they do not undermine the Medical Assessor's own findings on assessment in 2023.
The plaintiff also relies upon Dr Khan's reports, both of which suggested that there had been a profoundly negative impact upon the plaintiff's social and recreational (in the earlier report), or social (in the later report), functioning and did not otherwise refer to social or recreational activities. However, given that the Medical Assessor explained that his own findings at assessment differed from those of Dr Khan, Dr Khan's findings do not advance the plaintiff's contentions on this application for review.
Third, she submits that her contention that the Medical Assessor's conclusion as to categorisation on the Social and Recreational PIRS not being logically supported by the Medical Assessor's findings in the body of the Certificate, and as to the proper construction of that conclusion, were directly raised in her submissions to the Appeal Panel.
Fourth, she submits that the absence of any analysis of this contention in the Appeal Panel's reasons leads inevitably to a conclusion that the Appeal Panel did not understand the plaintiff's appeal ground, and thus did not discharge its statutory task of reviewing the Certificate for demonstrable error. The plaintiff also complains that the Appeal Panel appears instead to have reached its own judgment in finding, at [34], that the assessment of the plaintiff as falling within Class 2 of the Social and Recreational PIRS is "in accordance with the criteria in the Guidelines" and "is the best fit".
Fifth, the plaintiff submits that materiality is established because there is a realistic possibility that the Appeal Panel would have identified demonstrable error and issued a new certificate with a different % whole person impairment, had it properly conducted its statutory task.

Determination

Subject to meeting a threshold of materiality (as most recently explained by the High Court in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 89 ALJR 610 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) ("LPDT")), failure by an Appeal Panel to perform its statutory task of conducting a review on the ground, or grounds, of appeal advanced, or a misunderstanding of the case brought by an applicant, may well amount to jurisdictional error, see eg Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ); Scone Race Club v Cottom [2024] NSWCA 34 at [67] (Basten AJA, Gleeson and Mitchelmore JJA agreeing). It would be a decision that lacked the characteristics necessary for it to be given force and effect by the Management Act, adopting the language used by the plurality in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24], [29]-[30] (Kiefel CJ, Gageler and Keane JJ). Had the Appeal Panel failed to take into account the plaintiff's sole ground of appeal, that too would have been a jurisdictional error as the Appeal Panel is plainly required under ss 327 and 328 of the Management Act to consider the appeal grounds before it: see by analogy eg Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40 (Mason J).
In this case, as clarified in counsel's oral submissions, these two grounds of review really raise only one substantive complaint. As the High Court recently observed in LPDT at [5] "There are no bright lines to be drawn - "[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute"." (References omitted.) That complaint is that the Appeal Panel did not give substantive consideration to the plaintiff's sole ground of appeal.
Having regard to the reasons given by the Appeal Panel, and the terms of the Certificate, that complaint must be rejected for the following reasons.
First, it is readily apparent from the Appeal Decision that the Appeal Panel was aware of, considered and rejected the plaintiff's sole ground of appeal. In two places, at [18] and [32], the Appeal Panel correctly identified the plaintiff's contention as to demonstrable error, including that the Medical Assessor's conclusion was illogical and unsupported having regard to the findings in the body of the Certificate. The Appeal Panel, in its reasons: 1. extracted the Medical Assessor's conclusion as to categorisation on the Social and Recreational PIRS; 2. extracted the history as relevant to social and recreational activities as recorded in the Certificate by the Medical Assessor; 3. directed themselves that the Medical Assessor must make an independent assessment on the day of the assessment using his clinical judgment; 4. extracted the Medical Assessor's explanation in the body of the Certificate for differing from Dr Khan's assessment of the plaintiff and explaining his categorisation of the plaintiff on the Social and Recreational PIRS; 5. found that the Medical Assessor had assessed the plaintiff in accordance with the correct criteria and provided reasons for his assessment and why he was of the view that the plaintiff was less impaired when she was assessed in 2021 (when she was assessed by Dr Khan and Dr Smith); and 6. concluded that they could discern no error.
In so reasoning, the Appeal Panel engaged with the issue raised by the plaintiff's ground of appeal, which was whether the matters found by the Medical Assessor supported his conclusion as to categorisation on the Social and Recreational PIRS. In particular, the Appeal Panel's conclusions that the Medical Assessor assessed the plaintiff in accordance with the correct criteria, provided reasons for his decision and that they could discern no error, should be construed as a rejection of the plaintiff's contention that the matters relied upon by the Medical Assessor did not support his conclusion.
Second, whilst the Appeal Panel did not, in its reasons, expressly engage with the plaintiff's contention that the Medical Assessor's conclusion should be construed as relying only upon social activities which involved the plaintiff leaving her home, it is implicit in the Appeal Panel's reasoning that they rejected that contention. As set out above, that contention was reflected in the plaintiff's written submission, extracted by the Appeal Panel at [32] and set out above at [40]. In rejecting that contention of demonstrable error, the Appeal Panel relied upon findings of the Medical Assessor, including his findings as to visits both to and from people that the plaintiff trusts and knows well and having small celebrations at home. As is apparent, those findings include social activities conducted in in the plaintiff's own home. It is thus clear that the Appeal Panel rejected the plaintiff's contention that the Medical Assessor's conclusion should be construed as if it comprised only a finding that the plaintiff regularly engaged in social activities outside of her home. Thus, on a fair reading of the Appeal Panel's reasons, I am satisfied that the Appeal Panel considered and rejected this contention of the plaintiff as to construction of the Medical Assessor's conclusion.
It is also clear that the Appeal Panel was satisfied that the findings of the Medical Assessor in the body of the Certificate properly supported the Medical Assessor's conclusion that the plaintiff's attendance at social and recreational activities was "regular". That is readily understandable given that the various activities (other than hosting the birthday party) were described as having a degree of regularity. As set out at [49] above, the plaintiff accepts as much.
Moreover, as is clear from the terms of the Medical Assessor's conclusion as to the Social and Recreational PIRS, the Medical Assessor was cognizant of the need to compare the plaintiff's current social and recreational activities with her pre-injury activities. The Medical Assessor found that the plaintiff attended such activities less "since her injury".
Third, in the light of the matters set out above, it is unnecessary to consider whether or not the plaintiff's contentions as to the proper construction of the Medical Assessor's conclusion are correct. This is because the plaintiff's grounds of review rely upon an overarching contention that the Appeal Panel did not engage with or consider the plaintiff's ground of appeal, not that they erred in substance rejecting it. Nonetheless, given that this was a matter upon which the plaintiff advanced written and oral submissions, and lest my conclusions as set out above be subject to appeal, it is appropriate to set out my conclusion that the plaintiff's contention as to the proper construction of the Medical Assessor's conclusion should be rejected. It is plain from reading the terms of the Medical Assessor's findings, in particular those set out at [35] above explaining why he assessed the plaintiff as falling within Class 2 on the Social and Recreational PIRS, that he had regard to the plaintiff's attendance at social activities both inside out outside of her home in support of his conclusion as to categorisation on the Social and Recreational PIRS. In these circumstances, the word "attends" in the Medical Assessor's conclusion as to categorisation on the Social and Recreational PIRS should be read as encapsulating attendance at social activities both inside and outside of the plaintiff's home.
In my judgment, that is entirely consistent with the proper construction of the Social and Recreational PIRS. In particular, consistent with the approach to construction of the Guidelines set out in Kempe and Heise, it is appropriate to have regard to considerations of text, context and purpose, and to the fact that the Guidelines are not drafted by Parliamentary Counsel. As to text, table 11.2 must be construed having regard to the clear instruction at [11.12], extracted at [15] above, and reflected in Garling J's judgment in Jenkins, that the examples of activities in the tables are "examples only" and that the assessing psychiatrist should consider activities that are usual for the person's age, sex, and cultural norms. I have also had regard to the fact that, on the Social and Recreational PIRS against Class 1 - no or minor deficit, the drafter has referred to participation in social activities, whereas against Classes 2 and 3 - respectively mild and moderate impairment, the drafter has referred to a worker going out to "such events". I doubt very much that it was intended that a higher standard of engaging in activities outside of a worker's house, rather than participation in such activities, was intended as regards Classes 2 and 3, as opposed to Class 1.
As to context, it is clear that the aim of table 11.2 is to provide a tool for trained psychiatrists to assess a worker's impairment as regards social and recreational activities. Whether particular activities should be assessed as involving no, mild, moderate, or more severe impairment is a matter of judgment and degree for such a psychiatrist, having regard both to their training and to the examples in the Guidelines. It is unlikely in those circumstances that the Guidelines were intended to be proscriptive as to whether activities within or outside of a worker's home could be taken into account in making such assessments. Further, there are separate PIRS in the Guidelines for assessing impairment in relation to travel and social functioning. This suggests that the intention in table 11.2 is not to provide a tool for assessing a worker's ability to travel outside the home, nor for assessing their ability to sustain friendships. Rather, the intention in table 11.2 is to provide a tool for assessing the worker's ability to engage in activities that are properly characterised as social or recreational. There is no good reason why such activities would have to occur outside of a worker's home. Indeed, the artificiality of the plaintiff's proposed construction is apparent from her contention that a face to face catch up with a friend or friends can be a social and recreational activity if it occurs at the friend's house but must be ignored when making an assessment using the Social and Recreational PIRS if the friend or friends come to visit the plaintiff. Similarly, it is wholly artificial to suggest, as the plaintiff did, that the plaintiff hosting a birthday party must be ignored when assessing impairment on the Social and Recreational PIRS.
Considerations of purpose point in the same direction. Given that the purpose of the Social and Recreational PIRS is as a tool for trained psychiatrists to assess the functional impact of an injury on a worker's social and recreational activities, there is no sound reason why a distinction should be drawn between activities within or outside of the home. It is the social and recreational character of the activities that is relevant.
That is not to say that there may not be scenarios where the circumstances in which an interaction with a friend occurs, including the fact that it occurs in the worker's own home, or the lack of information about the circumstances of the interaction, might suggest that it is properly to be considered by reference to the PIRS for social functioning rather than social and recreational activities (as was the case in Ballas). However, where, as here, the Medical Assessor recorded that the plaintiff enjoyed visits both to and from her friends, and those visits occurred at a regular frequency and also that the plaintiff enjoyed "small celebrations at home", such activities can properly be considered as falling within Class 2 of the Social and Recreational PIRS.
I thus reject the plaintiff's contention that the proper construction of the Social and Recreational PIRS supported her contention that the Medical Assessor's conclusion as to categorisation depended only upon activities which took place outside the plaintiff's home.
In these circumstances, having regard to my findings as to the proper construction of the Medical Assessor's conclusion on the Social and Recreational PIRS and the plaintiff's concession at [49] above, even if I had found that the Appeal Panel did not consider or engage with the plaintiff's ground of appeal, that error would not have been a material error.
Finally, whilst, as the plaintiff submitted, the Appeal Panel did expressly agree with the Medical Assessor's assessment of the plaintiff as falling within Class 2 of the Social and Recreational PIRS, the Appeal Panel also, expressly, focussed upon its statutory task of determining whether or not there was demonstrable error in the Medical Assessor's Certificate. The Appeal Panel thus did not constructively fail to exercise jurisdiction by mistaking its role.
In these circumstances, both of the plaintiff's grounds of review should be rejected.

Conclusion

No submissions were made as to costs. In these circumstances, the usual order as to costs should be made.
The orders I make are: 1. Dismiss the plaintiff's further amended summons filed in Court on 14 June 2024; 2. Plaintiff to pay the first defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2024

JUDGMENT

The plaintiff, Elizabeth Botha, sustained a psychiatric injury by reason of interpersonal conflicts with her direct supervisor in her role as a Senior Executive (Director of Client Stakeholder Services) employed by the first defendant, the Department of Customer Service. She sought compensation on account of permanent impairment as a result of that injury, and a dispute arose as to the extent of that impairment. On 12 April 2023, a Medical Assessment Certificate ("Certificate") was issued by Dr Michael Hong (the "Medical Assessor") concluding that the plaintiff had a 9% permanent impairment. As the degree of her permanent impairment on account of psychiatric injury did not exceed 15%, having regard to ss 65A and 151H of the Workers Compensation Act 1987 (NSW) (the "Compensation Act"), no compensation for non-economic loss under Div 4 of Pt 3 of the Compensation Act or claim for work injury damages was available to the plaintiff.
The plaintiff appealed to the Appeal Panel of the Personal Injury Commission of NSW (respectively, "Appeal Panel" and "Commission"). The sole ground of appeal was that the Medical Assessor had demonstrably erred in finding that the plaintiff fell within Class 2, rather than Class 3, of the Psychiatric Impairment Rating Scale for "social and recreational activities" ("Social and Recreational PIRS") in table 11.2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition - reissued 1 March 2021) issued by the State Insurance Regulatory Authority (the "Guidelines"). The "demonstrable error" relied upon in the plaintiff's submissions to the Appeal Panel, noting that the grounds of appeal together with the submissions constitute the ground of appeal on which the appeal is made: New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [49], was that the Medical Assessor's conclusion in this regard was illogical having regard to the matters referred to in the body of the Certificate.
Had the Medical Assessor assessed the plaintiff as Class 3 on the Social and Recreational PIRS but his other assessment remained the same, the degree of her permanent impairment would have exceeded 15%. Thus, the error relied upon had significant implications for the plaintiff.
The Appeal Panel confirmed the Certificate of the Medical Assessor: Botha v Secretary, Department of Finance, Services [2023] NSWPICMP 526 (the "Appeal Decision").
By further amended summons filed in Court at the commencement of the hearing, the plaintiff seeks judicial review of the Appeal Decision. As explained during the hearing, and somewhat paraphrasing and clarifying the language in the grounds in the further amended summons, the essence of the two grounds relied upon are: 1. the Appeal Panel fell into jurisdictional error by failing to take into account the plaintiff's sole ground for alleging demonstrable error, namely whether the matters recorded in the body of the Certificate sustained or were capable of sustaining the Medical Assessor's conclusion, as set out in the Social and Recreational PIRS, for finding that the plaintiff should be assessed as falling within Class 2 on the scale, which was that the plaintiff "attends regular social activities". 2. The Appeal Panel constructively failed to exercise its jurisdiction as it did not correctly comprehend the substance of the plaintiff's appeal ground and/or did not engage in an active intellectual process with that ground.
The plaintiff seeks orders that the Appeal Decision be set aside and that the Appeal Panel be ordered to carry out its functions on the plaintiff's appeal according to law, and costs.
Both the second and third defendants, the President of the Personal Injury Commission and the Appeal Panel respectively, filed submitting appearances.
For the reasons set out below, the further amended summons is dismissed.

Legislative framework

Given the confined matters raised in this application, it is sufficient simply to outline some aspects of the legislative framework within which the Medical Assessor and Appeal Panel operate together with relevant authorities going to the proper construction and operation of those provisions.
The assessment of impairment is governed by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "Management Act"). Under ss 319 and 321A a medical dispute concerning the degree of permanent impairment of a worker as a result of an injury may be referred for assessment.
Section 322 of the Management Act requires that the assessment of the degree of permanent impairment of an injured worker for the purposes of the Compensation Act is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued under s 376, which includes the Guidelines.
The Guidelines include a number of psychiatric impairment rating scale ("PIRS") tables, covering self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability. Each table is divided into five classes. The assessment of a worker's psychiatric impairment by reference to each of these PIRS determines, through a process of aggregation and conversion, the assessed % whole person impairment.
As to these various PIRS, in Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 ("Ballas") Bell P (as the Chief Justice then was) and Payne JA held that "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": at [93]. Their Honours held, at [94]: "Even if there may, as a matter of English language, 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 characterisation of the conduct, that is, whether it goes to "self care and personal hygiene", "social and recreational activities", "travel", "social functioning (relationships)", "concentration, persistence and pace" or "employability". This 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. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker's entitlement to compensation."

Whilst as set out above, Bell P and Payne JA in Ballas held that characterisation of conduct as between the various scales in the Guidelines is not a matter of discretion, their Honours also recognised that a medical assessor must exercise a degree of clinical judgment in assigning a class of seriousness to each area which they are required to assess: at [93].
Consistent with this, at [11.2] the Guidelines state: "Evaluation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method."
That recognises what would in any event be expected, namely that a medical assessor will bring their own special expertise to bear in assessing a worker using each PIRS. In Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [64] Basten AJ referred to this paragraph in support of his Honour's observation that it is "self-evidently, no function of this Court to review the classification [in that case by an Appeal Panel]".
As to construction of the Guidelines, in Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095 ("Kempe") at [30], Griffiths AJ said: "There was also broad agreement between the parties concerning the principles to apply in construing the Guidelines. Although the Guidelines are neither a statute nor subordinate legislation, they have been held to have the effect of subordinate legislation: see Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] per Bell P and Payne JA. They are issued under s 376 of the 1998 Act and, by dint of the operation of ss 3(1) and 5(2) of the Interpretation Act 1987 (NSW), they are also an "instrument" to which that Act applies subject to a contrary intention. Generally speaking, therefore, the ordinary principles of legislative construction apply to the Guidelines (see Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores [2017] NSWSC 363 at [61] - [63] per N Adams J). Thus considerations of text, context and purpose are important (see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] per Kiefel CJ, Nettle and Gordon JJ, [37] - [40] per Gageler J). Appropriate allowance needs to be made for the form of the Guidelines, which is not the form of primary or secondary legislation."
Further, in Heise v Employers Mutual Limited [2022] NSWCA 283 ("Heise"), Kirk JA (with whom Mitchelmore JA and Griffiths AJA agreed) observed at [57]: "The appellant described the Guidelines as a form of "delegated legislation". That may be overstating their significance: cf Ballas v Dept of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97]; Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095 at [30]. Regardless, what is clear from the Guidelines is that they are not drafted in the manner of legislation, nor, it seems, with the care and precision typically associated with legislation. I infer that they are drafted by the Authority itself rather than by Parliamentary Counsel. An introductory page states that the Authority "has developed these Guidelines"."

(2020) 102 NSWLR 783

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Cases Cited (23)