Espana v Architectural Projects Pty Ltd

Summons

1. In the Summons, the plaintiff claimed that this Court should set aside the decision of the Appeal Panel and remit the matter to the second defendant for a re-determination according to law.
2. There were 10 grounds identified in the Summons, which are directed to various aspects of the Statement of Reasons of the Appeal Panel.
3. However, it seems by reference to the submissions that were ultimately filed, the underlying bases upon which those grounds relied have been clarified and refined.
4. In order to understand the submissions for the plaintiff, it is necessary to first set out, in some detail, the contents of the MAC and also the Statement of Reasons of the Appeal Panel.

Medical Assessment Certificate

1. The Assessor noted that the date of injury of the plaintiff was 9 February 2021, and that he had been referred the plaintiff's psychiatric or psychological disorder for the purpose of assessing the extent of the plaintiff's WPI. He recorded that he examined the plaintiff on 24 January 2023.
2. The Assessor noted the plaintiff's present symptoms to be: "He reported having chronically depressed mood. He described having reduced concentration and memory. Suicidal ideation has ceased. He reported having lost weight but does not know how much. He reported having sleep problems. He has poor sleep and explained he does not like his bedroom as it is too quiet and empty. He prefers to sleep in the lounge. He has panic attacks. He has been irritable and socially withdrawn."
3. The Assessor noted that the plaintiff's father lived overseas and that he had a sister in Newcastle. He reported that he had previously had long term partners, the last of whom was in 2012.
4. Under the heading of "Social Activities/ADL [Activities of Daily Living]", the Assessor recorded: "Mr Espana is 57 years old and lives alone in an apartment. He has no partner and no dependents. He said that he spends a lot of time in his apartment. He said he had always been interested in Japanese joinery as an architect and started to do some learning about hands-on carpentry work, and he set up a workshop on his balcony, but he said he is making a mess. He said he has problems visualising and doing mental arithmetic now. I asked him what type of project he has been trying to make, and he said he has a glass table with a broken leg and he is trying to design a new base, but it is not very good as he is still learning and he is only doing this on-and-off. … He has played the guitar for many years, on-and-off. He used to be in a band when he was at university and played rock, jazz and classical musical. He still plays sometimes. … I asked Mr Espana whether he has contact with any friends, and he said he does not have contact with any friends anymore. He later confirmed that he has text contact with maybe three friends living in Parramatta and Newcastle. He may exchange texts with them maybe every two or three days. Mr Espana said his psychologist, Natalia, asked him to go out with one of his friends so he went to have a beer at a bar in Parramatta and then it was busy and he left as he could not tolerate it."
5. The Assessor undertook a full psychiatric assessment even though the consultation was via AVL and recorded this: "He fidgeted and presented as anxious. He grimaced at times, and gestured regularly. He was vague at times and struggled with medication names and some of the specific dates. He provided a coherent history and recalled some details, but not others. He was consistently focused throughout the assessment. He did not perseverate, and there was no set-shifting difficulty. Mr Espana maintained good speed and pace all through the assessment. There was no psychomotor slowing or abnormal thoughts. He was mildly restricted in his affect range and reactivity."
6. That psychiatric assessment was noted to have taken 60 minutes.
7. A cognitive assessment was also undertaken with the results of that process being noted.
8. The Assessor summarised the plaintiff's overall presentation in this way: "I have been requested to assess Mr Espana's WPI. Professor Davies rated Mr Espana's travel as 1 and noted he travelled without difficulty. Mr Espana did not agree with that assessment. In my assessment I noted that whilst he is independent in travel, he avoided certain places and crowded places, and therefore I rated 2. In terms of concentration, persistence and pace, Professor Davies rated 3 and noted problems with Mr Espana's concentration and difficulty with any sustained reading. He also recorded a very different mental state examination. In my assessment I noted problems with his eyes to the point that he cannot even look at a television. He is trying to learn about carpentry from video watching, but only for short periods. He listens to some documentaries. His eye problem cannot be assessed in the PIRS, and based on his mental state examination and capacity for maintaining focus for one hour during my assessment, I rated 2. In terms of employability, Dr Annand [sic] rated a 3. I noted that Mr Espana is highly anxious and avoidant and he did not agree with the vocational assessment for the identified job options. Overall, my view is that a return to work would be extremely unlikely and his psychological health would almost certainly decompensate, and therefore I rated a 5."
9. As he was required to do, the Assessor noted his ratings by reference to the Psychiatric Impairment Rating Scale ("PIRS"). Relevantly, under the category "Social and Recreational Activities", a score of 3 (moderate impairment) was assessed with these comments: "He stopped attending social gatherings. He has no social recreational activities now. His recreational activities are not improved with eased COVID‑19 restrictions."
10. With respect to the scale of "Social Functioning", the Assessor rated the plaintiff as 2 (mild impairment), providing this description: "He lost many friendships. He maintains two long-term friendships. The relationship with his general family is reasonable."
11. So far as the scale for "Concentration, Persistence and Pace" is concerned, the Assessor again rated the plaintiff as 2, giving this description: "Mr Espana described having poor concentration. His mental state examination is consistent with 2. This is discussed further under physical examination section. My view is that he can focus on intellectually demanding tasks up to 30 minutes, including learning carpentry online and doing carpentry projects."
12. Ultimately, the Assessor arrived at a total aggregate impairment score of 16 which, when added to the effects of treatment, converted to a WPI of 11%.
13. As required by the legislation, in addition to the matters to which I have referred, the Assessor set out his reasons for that assessment.
14. He referred to the report of Dr Ashwinder Anand of 3 May 2022, which he summarised. He noted that Dr Anand assessed the plaintiff as being a total of 9% WPI - being 8% WPI and 1% for treatment effects.
15. He noted what the plaintiff's statement said. He referred to the report of Professor Gordon Davies of 11 February 2022, and in particular noted that the plaintiff's presentation to Professor Davies, which was described as "… voluble and hyperactive, restless and at times incoherent, and gave a disorganised history" was very different to the way in which the plaintiff presented to him during the assessment which he undertook. It is clear that this difference in presentation was one factor which explained the variation in the WPI arrived at by the Assessor of 11%, and that arrived at by Professor Davies of 17%.

Referral to Appeal Panel

1. As earlier noted, a delegate of the President of the Personal Injury Commission considered the appeal lodged by the plaintiff against the decision of the Assessor. She also considered the Employer's response. She concluded in this way: "Upon examination of the MAC and on the face of the application and submissions made, I am satisfied that a ground of appeal as specified in s 327(3)(d) [of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act)], is capable of being made out. I am satisfied that the appellant's argument that the Medical Assessor erred in his application of the Psychiatric Impairment Rating Scale (PIRS) is capable of being made out."

Decision of the Appeal Panel

1. The Appeal Panel gave its decision on 22 May 2023, and set out its reasons in writing for that decision. In short, it concluded that the MAC issued on 10 February 2023 should be confirmed.
2. The Appeal Panel, having considered the matter at a preliminary stage, concluded that it was not necessary for them to re-examine the plaintiff. No complaint was made about that decision.
3. The Appeal Panel also correctly noted that the assessment of permanent impairment was conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 ("the Guidelines") and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed ("AMA5").
4. It is convenient to set out here the contents of the PIRS which are contained in Chapter 11 of the Guidelines insofar as they are relevant to the Reasons of the Appeal Panel, and as they relate to the arguments put before this Court.
5. Two separate scales of the six contained under the PIRS were in issue. Table 11.4: Social Functioning, and Table 11.5: Concentration, Persistence and Pace. The first, being Table 11.4 provides as follows with respect to social functioning: "Class 2 - Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships." "Class 3 - Moderate impairment. Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Partner, relatives or community services looking after children."
6. The second scale which was the subject of submission was Table 11.5: Concentration, Persistence and Pace, which provides the following: "Class 2 - Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache." "Class 3 - Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting."
7. The Appeal Panel noted that the appeal which it was conducting was to be undertaken by way of review of the original medical assessment, but that that review was limited to the grounds of appeal on which the appeal was made.
8. The plaintiff contended before the Appeal Panel, in short, that the Assessor had erred on the Table 11.4: Social Functioning scale by assessing the plaintiff as having a mild disability (Class 2) as opposed to a moderate disability (Class 3). With respect to the Table 11.5: Concentration, Persistence and Pace scale, the plaintiff contended that the Assessor had similarly erred by assessing the impairment as being a Class 2 mild impairment level rather than a Class 3 moderate impairment level.
9. In the Appeal Panel's reasons, having set out the submissions made by the employer with respect to the Table 11.4 scale, the Appeal Panel noted the descriptors and recorded its reasons in the following terms: "27. In our view, there is no evidence to support a class 3 rating for reasons that follow. 28. To begin with, the evidence does not suggest that Mr Espana's established relationships are 'severely strained' nor that he requires assistance from relatives or community services. 29. As the MA noted, Mr Espana is 57-years-old and lives alone in an apartment. He has no partner and no dependents. 30. He is clearly in contact with friends and family, even if only by text. He mentioned three friends living in Parramatta and Newcastle, and that he may exchange texts with them every two or three days. 31. The evidence suggests that Mr Espana has never engaged in extensive social functioning. For example… 32. Contrary to some of his statements to the MA, it seems that Mr Espana considers his sister as his only family member. 33. In addition, his only pre-injury significant social activity was an annual trip to Byron Bay to stay with his friend Simon. 34. In short, Mr Espana does not describe an active social life prior to his injury, nor active interaction with his family. 35. In these circumstances, a class 2 rating seems entirely consistent with the evidence, and we do not agree that the MA erred in his assessment in this category."
10. The Appeal Panel's reasons with respect to the Table 11.5 scale for Concentration, Persistence and Pace were somewhat longer. They included: "39. Having said that, we do not agree that Mr Espana satisfies that rating [Class 3] for reasons that follow. 40. We note the observations of Dr Anand in his report dated 3 May 2022, when he said: 'In a typical week, he stated that he plays the guitar. He is extremely creative and he stated that his entire house is almost like a workshop now and he is always trying to create things and is totally absorbed by these activities. He has at the urging of his psychologist, Charmaine, started doing some yoga and some weights. He is also engaging with MindSpot and doing a course on anxiety and depression …' 41. In addition, the cognitive assessment performed by the MA did not disclose any significant impairment. … 44. The MA conducted a thorough mental state examination. The assessment itself is a cognitively demanding task that enables an objective evaluation of an appellant's impairment in concentrating and persisting with such a task, and the pace at which an appellant can do this. The MA recorded Mr Espana's presentation set out above, during an assessment that took one hour. 45. The examination is also a good indicator as to the level of functioning as assessed by an MA on the day of assessment. 46. The MA concluded that the appellant's abilities in this category were mildly impaired and consistent with a general descriptor of a class 2 rating. 47. The descriptors are just that: a broad outline of the sorts of activities or cognitive impairments in a particular category. 48. Consistent with his task, the MA based his assessment on all of the evidence to which he referred including his own detailed assessment on the day of examination. He was mindful of the opinion of the independent medical assessors and explained why his opinion differed. 49. In our view, the MAC was both thorough and detailed, and we cannot see any errors in the findings and assessment of the MA."
11. As earlier noted, the Appeal Panel confirmed the MAC, thereby dismissing the plaintiff's challenge to it.

Relevant Legal Principles

1. In Ballas v Department of Education (2020) 102 NSWLR 86; [2020] NSWCA 86 ("Ballas"), in a joint judgment of Bell P and Payne JA (with which Emmett AJA agreed), their Honours said: "87. It should at this point be observed that the nomenclature employed in the Guidelines is apt to confuse. The word 'scales' is used in the Guidelines to describe areas or categories of functional impairment, even though the word 'scale' is not a natural synonym for either of those two concepts. The word 'classes' is actually closer in ordinary English meaning to 'categories', but is used in the Guidelines to means degrees of impairment. The Guidelines moreover allow for the assignment of a range of impairment from 1-5 scales which may be thought of in terms of a 'scale' in its ordinary English sense. It is not difficult to understand how, therefore, confusion may arise. 88. A review of the Delegate's decision shows that, on a number of occasions, she conflated these concepts. One example is supplied by contrasting the Delegate's use of the word 'category' in [18] of her reasons (which clearly was a reference to 'scale', because she spoke of a 'category of social and recreation', corresponding to the second of the six scales in s 11.11 of the Guidelines) with her statement in [23] that 'PIRS categories are examples of activities only' and are 'generic and general in their description', … Here, she was using the word 'categories' to refer to the 'classes' by reference to which activities are rated..."
2. Further, in Ballas, the joint judgment discussed questions relating to the correct use and application of the PIRS scales. Their Honours said: "92. If, … the Delegate was referring to categories as 'scales', … then the Delegate was wrong to speak in the language of 'discretion'. The scales are fixed and are treated by the Guidelines as distinct from each other. The structure of the Guidelines, and the mandated use of a standardised form on which [a Medical Assessor] must specify the 'class' he or she assigns to each 'scale' and give his or her reasons for doing so, are design [sic] to add transparency and rigour to the exercise of WPI assessment. 93. Whilst it is no doubt correct that [a Medical Assessor] must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to 'social and recreational activities' on the one hand, as opposed to any of the five scales on the other hand, is not a matter of discretion. 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, ie 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 [Medical Assessor] 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 workers entitlement to compensation. … 97. The aim of the Guidelines (which have been held to have the force or effect of delegated legislation …) would be subverted if the decision as to which scale to place certain conduct in for the purpose of assessing the seriousness of impairment were left to the discretion of [a Medical Assessor]... This would also have ramifications for the reviewability of decisions by [a Medical Assessor]. There is an important difference between a characterisation exercise and an exercise of discretion."
3. It is necessary to bear in mind that Ballas involved a challenge to the decision of a Delegate who had declined to refer an appeal from the decision of a Medical Assessor to a Medical Appeal Panel.
4. The judgment in Ballas was considered by Basten AJA in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929. This was a case which involved judicial review of a decision of an Appeal Panel, rather than the Delegate which was the position in Ballas. Basten AJA said in: "64. It is, self-evidently, no function of this Court to review the classification by the Appeal Panel. Nor, as has occasionally been considered, would it be appropriate for this Court to identify from the reasons that the Appeal Panel has asked itself 'the wrong question', thereby establishing error of law. While extreme cases where error may be established can be imagined, they will be readily apparent because the Appeal Panel has confused one appellant with another or made some equivalent manifest error, sufficient to constitute an error of law on the face of the record, or jurisdictional error."
5. At [64], Basten AJA also noted that the Guidelines entrusted the task of making evaluations of psychiatric impairment to a psychiatrist who had received appropriate training in the assessment of an individual by reference to the PIRS methodology. I note that Clause 1.13 of the Guidelines requires medical specialists to "… exercise their clinical judgment in determining … impairment", which must be measured in accordance with the PIRS when psychiatric impairment is claimed.
6. Clause 11.6 of the Guidelines contains the following : "11.6 It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker's psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and probable duration of the impairment, but is not the sole criteria to be used. Clinical assessment of the person may include information from the injured worker's own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests - including appropriate psychometric testing performed by a qualified clinical psychologist, and work evaluations - may provide useful information to assist with the assessment. Evaluation of the impairment will need to take into account variations to the level of functioning over time. …"
7. Clause 11.12 of the Guidelines is also important, omitting the tables which fall underneath it, it reads: "11.12 Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. An assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms."
8. In Lancaster, the Appeal Panel had concluded that there was no error in the classifications of the Medical Assessor. At [68], Basten AJA said this: "… It has been said that mere disagreement with the outcome does not give rise to a basis for intervention. That is true, but that is because such a 'disagreement' relates to a factual assessment and, in its terms, engages no legal principle and therefore cannot demonstrate error of law on the face of the record."
9. To a similar effect in the judgment of Beech-Jones J (as his Honour then was) in Insurance Australia Ltd v O'Shannessy [2015] NSWSC 1047 at [63], in which he adhered to what he had said in McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798 at [96]: "If this Court was not constrained to only considering whether there was a jurisdictional error or error of law on the face of the record but was instead simply considering whether the Tribunal erred in law, an attack on a finding of a non-jurisdictional fact could be mounted … by demonstrating that there was no evidence to support it … However, this Court is so constrained. As none of the facts challenged under this ground have a jurisdictional quality, no challenge can be made to them by conducting an enquiry that involves travelling beyond the 'record'. … The challenge does not raise a complaint of jurisdictional error."
10. His Honour noted this in [62] of Insurance Australia Group: "… If the challenged fact does not have any jurisdictional quality, then the only basis for intervening under s 69 [of the Supreme Court Act 1972] is for error of law on the face of the record. However, … a no evidence ground can only be established by considering all of the material before the decision maker even though that material does not form part of the record … ."
11. On a judicial review application to this Court, a ground which raises error in the outcome of an evaluative decision, i.e., where there is varying evidence and material before a Medical Assessor or an Appeal Panel which needs to be assessed and evaluated by the application of (here) psychiatric expertise, faces an almost insurmountable hurdle. More often than not, properly understood, such a ground will be nothing more than an invitation for the Court to entertain what is, in substance, a merits review.

The Plaintiff's Submissions

1. The plaintiff submitted that there were a number of legal errors in the reasons of the Appeal Panel which were sufficient to warrant granting the relief claimed. The first of those errors was that the Appeal Panel, at paragraphs 28 to 29, took into account an irrelevant consideration.
2. This jurisdictional error was described as the misapplication of the Class 2 and Class 3 descriptors of Social Functioning. The plaintiff submitted that these paragraphs demonstrated that the Appeal Panel regarded living alone and not requiring help from others as being relevant to the Social Functioning scale, whereas he submitted that the ability or lack of ability to live alone and look after oneself is specifically related to the Self Care and Personal Hygiene scale. He submitted that to the extent that Class 2 or 3 for Social Functioning refer to getting help from others or community services i.e., in the context of being separated from loved ones or else caring for children who may need help, it is irrelevant to have regard to the fact that a claimant may live alone and be able to care for themselves. He submitted that taking into account an irrelevant fact constituted jurisdictional error.
3. The second legal error related to the rejection of the plaintiff's submissions to the Appeal Panel that he was properly categorised as a Class 3 on the Social Functioning scale upon the basis of a failure by the Appeal Panel to bring an appropriate balance to their remarks about the extent of the plaintiff's social functioning, to avoid selective quotation from the evidence, and to specifically address written submissions put by the plaintiff's solicitor to the Appeal Panel.
4. The plaintiff's submission was that legal error was evident because the evidence referred to by the plaintiff in support of his appeal to the Appeal Panel was ignored and not engaged with, when the Appeal Panel expressed its conclusion (at [27]) that there was no evidence to support a Class 3 rating, and further that a Class 2 rating seemed entirely consistent with the evidence.
5. Put differently, the plaintiff submitted to this Court that the Appeal Panel had: "… unduly discounted the rating of the plaintiff's level of impairment based on a selective assessment of the evidence as to his pre-injury level of functioning in area of Social Functioning."
6. In pointing to the next legal error, the plaintiff's submissions turned to the Concentration, Persistence and Pace scale. The submissions to this Court noted that the plaintiff had contended that upon the correct application of the relevant criteria on the PIRS, some of the PIRS assessment ought to have been assessed as Class 3 under the Guidelines.
7. These submissions highlighted the high level of intellectual functioning of the plaintiff prior to his ceasing work due to psychiatric impairment. The plaintiff's submissions pointed to the fact that prior to the onset of the major depressive disorder, the plaintiff was a highly functioning architect whose work would involve complex arithmetic and understanding complex instructions such as building plans, typing long documents and like activities.
8. This was contrasted in the plaintiff's submissions by the fact that the MAC noted that the plaintiff had difficulty doing mental arithmetic, that he had a poor memory and that he was unable to successfully design a new base for a glass table.
9. The plaintiff noted that it had been submitted to the Appeal Panel that: "Given his drastic decline in concentration, persistence and pace the worker would clearly fall within Class 3."
10. The plaintiff submitted that in its reasons set out from paragraphs 39 to 49, set out at [41] above, the Appeal Panel had cited and relied on irrelevant considerations to support the conclusion that on this scale, the plaintiff was properly assessed as Class 2. The plaintiff pointed to the following as being irrelevant, namely, playing guitar, being creative, and doing yoga and weights. He submitted to this Court that those matters were not evidence of, nor relevant to, the assessment of the Concentration, Persistence and Pace scale.
11. The plaintiff also pointed to the fact that the Appeal Panel took into account that the plaintiff had "engaged with MindSpot" and had done a course about anxiety and depression as evidence of an ability relevant to the Concentration, Persistence and Pace scale.
12. Before this Court, the parties agreed that MindSpot was a free, national on‑line clinic for Australian adults troubled by symptoms of anxiety, stress, depression and low mood. The plaintiff pointed out that engagement with MindSpot was a form of treatment and was irrelevant as to a conclusion as to the level of functioning of a person on the Concentration, Persistence and Pace scale.
13. In support of this claimed legal error, the plaintiff points to the fact that the Appeal Panel only quoted part of clause 1.6 of the Guidelines, and not its entirety, which gives a misleading impression of what that clause addresses.
14. Finally, the plaintiff also submits that the Appeal Panel had failed to engage with the submissions of the plaintiff to it insofar as those submissions highlighted evidence supporting a conclusion of impairment at the level of Class 3.
15. It is convenient to summarise the plaintiff's contention as to jurisdictional error by using his own submissions which read: "50. In this case, the Appeal Panel made a jurisdictional error in mis-applying the Guidelines. As stated above, the Panel … wrongly equated and conflated the ability to live on one's own with Social Functioning. Similarly, the Panel wrongly equated and conflated simple hobbies that required no complex mental functioning and other therapeutic activities with an ability for Concentration, Persistence and Pace. 51. In so doing, conflating the separate considerations of the different PIRS categories in the Guidelines."

Defendant's Submissions

1. Without doing a disservice to the defendant's careful submissions, the employer contended that the Appeal Panel had come to factual conclusions which were open to it and had correctly applied those factual conclusions in making an assessment of the level of impairment of the plaintiff as between either Class 2 or Class 3 and with respect to both scales of Social Functioning and of Concentration, Persistence and Pace.
2. In particular, the defendant takes issue with the plaintiff's submissions that under Concentration, Persistence and Pace, the creative pursuits described, including the playing of a guitar, cannot be held by this Court to be irrelevant to an assessment of Concentration, Persistence and Pace. On the contrary, the defendant submits that the Appeal Panel was entitled to consider creative tasks as a relevant consideration and to take those into account. The defendant points to the fact that the Appeal Panel paid careful attention to the cognitive assessment of the plaintiff which was undertaken by the Medical Assessor and that he noted that the cognitive assessment did not reveal any significant impairment. The defendant submitted that this was an important factor, and an available factor, upon which the Appeal Panel was entitled to rely in considering the class to be allocated to the plaintiff.
3. To the extent that the plaintiff complained in these proceedings that the Appeal Panel had not engaged with submissions made by it, the defendant submitted that, the Appeal Panel did engage with the plaintiff's submissions but was simply not persuaded by them. The defendant points to the contents of paragraphs 24 and 36 of the Appeal Panel's reasons. The defendant submitted that it is not the task of the Appeal Panel to engage with every submission before it from a plaintiff. Rather, it submitted that it was required to provide reasons sufficient to explain its preference for the conclusion which it reached.
4. The defendant submitted that there was no jurisdictional or other legal error to be found.

Discernment

1. On the hearing of a Summons seeking relief of the kind sought here, it is necessary to keep in mind that the Court is engaged in a process of judicial review, and that it is not engaged in a process of merit review. The reason why this Court does not undertake a merit review is in part, because, as clause 11.2 of the Guidelines indicates, the evaluation of psychiatric impairment is to be conducted by a psychiatrist "… who has undergone appropriate training in this assessment method". This Court is not in any such position, nor does it have any appropriate training: Lancaster at [64].
2. In addition, as explained in [51] to [52] above, the Court has not undertaken a merits review because the exercise of the functions of judicial review is not the equivalent of an appeal, nor is it a re‑hearing of any kind: cf s 75A Supreme Court Act 1970 and is limited to either a jurisdictional error or an error of law on the face of the record.
3. Dealing first with the Scale for Social Functioning, I am not satisfied that the plaintiff has established error. In the first place, the expression used by the Appeal Panel that there was "no evidence to support a Class 3 rating" was said to be a suggestion that the Appeal Panel is making an error of law because the factual assessment does not support that conclusion. Upon a fair reading of the whole of the reasons of the Appeal Panel, the phrase which is criticised was not being used in a legal context. It is to be understood as an expression that there was no evidence sufficient to persuade the Appeal Panel that a Class 3 rating should be given. That is apparent from what follows immediately after the statement where the Appeal Panel goes on to discuss the facts which they identify as being relevant to the Class 2 rating. It is also confirmed in paragraph 35 of the Appeal Panel's reasons where it says that a "Class 2 rating seems entirely consistent with the evidence". The Reasons must be read as a whole.
4. The second submission was that the Appeal Panel had taken into account a wholly irrelevant consideration by recording that the plaintiff lived alone in an apartment and had no partner or dependents. In assessing the extent to which the plaintiff's Social Functioning is impaired, in my view a contextual fact relevant to that scale can be the domestic circumstances of a claimant. It can be a baseline against which the individual's social functioning is assessed. In oral submissions, the plaintiff's counsel conceded that facts about the plaintiff living alone, with no partner or dependents, was not irrelevant as a baseline condition. On the one hand, should a claimant live with a group of people, either family or friends, then the extent of social functioning within the family or with those friends would be relevant. It can be relevant to explain why any impairment of social functioning depends upon an assessment of the plaintiff's interaction with people outside the home environment.
5. I am not persuaded that this is an irrelevant factor which cannot be considered in assessing the position of the plaintiff under this scale. No jurisdictional error is demonstrated, nor is there any error on the face of the record.
6. The argument about the fact that another scale, namely Self Care and Personal Hygiene, may also deal with the fact that a person is living alone as the context in which the capacity to self‑care and have good personal hygiene may have been impaired, does not mean that it is not a contextual fact for the assessment of impairment and according to another scale.
7. Complaint was also made that there was a misdescription in paragraph 33 of the Appeal Panel's reasons by describing the plaintiff's annual trip to Byron Bay to stay with a friend as being "his only pre-injury significant social activity". On balance, having regard to all of the material, I do not regard that as a misdescription. If it was a misdescription, it was a misdescription of a factual matter and is therefore not capable of constituting an error of law of a kind which amounts to jurisdictional error, or other relevant error.
8. It is clear that the Appeal Panel did not agree with the plaintiff's submissions that he ought properly to have been assessed as a Class 3 impairment. However, the Guidelines and the procedures entrust to the Appeal Panel and the Medical Assessor, the task of applying their expertise in assessing the psychiatric impairment on the requisite scale. The fact that the Appeal Panel disagreed with the plaintiff's submissions is one of only two alternative options. They either agreed and increased the level of impairment to Class 3, or they disagreed with the submissions and agreed with the Medical Assessor to maintain the impairment level at Class 2.
9. In making that assessment, the Appeal Panel is not required to discuss every argument put before it, nor is it required to identify its reasons for not accepting the plaintiff's submissions to it. It is not required to explain why it rejected, or else did not rely on some of the material that was before it, including medical opinions, and preferred other opinions.
10. As the High Court noted in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, at [56], the requirement to identify a path of reasoning by which it arrived at its opinion, did not entail any obligation on the part of the Appeal Panel: "… to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else."
11. Much less is an Appeal Panel required to give reasons why it does not accept submissions to it which articulate one of a number of available arguments.
12. As Basten AJA said in Lancaster at [45], when discussing the obligation to give reasons by an Appeal Panel: "45. That purpose is to ensure that, to the extent possible, any error of law in the reasoning of the Appeal Panel is revealed and may be the subject of an application for judicial review. However, as a practical matter, the Appeal Panel is likely to determine the question before it as a matter of expert medical opinion, the basis for which is peculiarly a matter of its special expertise and which will rarely give rise to any error of law, except on the basis that it is devoid of support in the material before the panel."
13. The plaintiff has not persuaded me of any error in the Appeal Panel's consideration of the level of impairment of the plaintiff on the Social Functioning scale.
14. In considering the Appeal Panel's rejection of the plaintiff's submissions to it with respect to the Concentration, Persistence and Pace scale, the substance of the complaints really invited a merits review by this Court. The substance of the submissions was that the extent of deterioration in the plaintiff's concentration and persistence was such that he ought to have been categorised as a Class 3 impairment.
15. I reject the plaintiff's submission that playing a musical instrument and engaging in creative activities, including doing "some yoga and some weights", cannot be taken into account as relevant to an assessment of concentration and persistence under the scale. To my mind, it is a matter for the Assessor or the Appeal Panel to determine whether the playing of a musical instrument requires concentration by a person. The fact that the musical instrument is regularly played may well indicate to an expert assessor that there has been impairment, even if of a minimal kind, to the individual's pre-injury ability to concentrate and persist with an activity. The same can be said of creative activities. Many creative activities involve intense concentration. Very few creative activities involve no concentration or persistence at all. I regard these matters of fact as relevant and capable of being taken into account in assessing such impairment.
16. The plaintiff certainly has not satisfied me that they are an irrelevant consideration.
17. The plaintiff also submits that it was erroneous to take into account that the plaintiff had engaged with MindSpot in undertaking a course of anxiety and depression treatment. I reject such submission.
18. Were a claimant to be prescribed a course of treatment for a psychological or psychiatric condition, which course required attending to treatment on more than one occasion, depending on the particular course and the treatment which it provided, it is open to conclude that participation in that course requires a degree of concentration and a degree of persistence. It is a matter for the Appeal Panel and the Medical Assessor to weigh up that fact in coming to its assessment of the impairment level on the Persistence, Concentration and Pace scale.
19. Far from not properly assessing the impact upon the plaintiff's pre-injury impairment, the Appeal Panel carefully identified in its reasons at [36] and [40]-[49] what the plaintiff did prior to the plaintiff's psychiatric injury preventing ongoing employment, it identified and assessed what the plaintiff was capable of doing at the time of its review, and made an assessment, as did the Medical Assessor, of the level of that impairment.
20. No error of a jurisdictional kind or error on the face of the record has been identified.
21. In my view, in substance, the plaintiff was seeking a merits review from this Court which is not an available basis for the relief which his Summons sought.

Conclusion

1. I have concluded that the plaintiff has failed to demonstrate any jurisdictional error or error on the face of the record on the part of the Appeal Panel in its determination and in the reasons which it provided for its determination.
2. I have concluded that there is no basis for the plaintiff to obtain any of the relief which he seeks.
3. I note that it was agreed between the parties that whatever the outcome of the proceedings, this Court would not be invited to make any order for costs.

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