Field-Whittaker v Thomas & Naaz Pty Ltd - [2022] NSWSC 666 - NSWSC 2022 case summary — Zoe

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Field-Whittaker v Thomas & Naaz Pty Ltd

[2022] NSWSC 666

Supreme Court of NSW|2022-03-16

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-03-16

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Judgment

HER HONOUR: This matter involves the review of a decision of a Medical Appeal Panel of the Personal Injury Commission of New South Wales.
The plaintiff is Belinda Field-Whittaker. The first defendant is Thomas & Naaz Pty Ltd ("the employer"). The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is members Ms Deborah Moore and Drs Julian Parmegiani and Michael Hong in their capacity as an Appeal Panel ("the Appeal Panel") constituted under s 328 of the Workplace Injury Management and Worker's Compensation Act 1998 (NSW) ("WIM Act"). The second and third defendants filed submitting appearances.
The parties relied on a Court Book ("Ex A").
By amended summons filed pursuant to leave on 11 October 2021, the plaintiff relevantly seeks the following orders: 1. An order under s 69 of the Supreme Court Act 1970 (NSW), setting aside the certificate and reasons dated 28 May 2021 (and incorporating the Preliminary Review directions of 15 April 2021) given by an Appeal Panel appointed under the WIM Act. 2. An order in the nature of Mandamus remitting the matter to the second defendant for redetermination.

[2]

Background

From August 2010 onwards, the plaintiff was an employee of Thomas & Naaz Pty Ltd, and from about 2012 onward was the practice manager in respect of the four medical practices that comprised the business. Drs Thomas and Naaz are husband and wife. Dr Naaz is a practising GP. Mr Thomas is no longer practicing as a GP.

[3]

The relevant statutory provisions

I shall briefly outline the relevant provisions of the statutory scheme. For a worker to receive compensation under s 9(1) of the WC Act, the worker must suffer an injury which is defined in s 4 as follows: "In this Act: injury: (a) means personal injury arising out of or in the course of employment, …"
No compensation is payable pursuant to s 9A(1) of the WC Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Section 9A relevantly reads: "9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. …"
Chapter 7, Part 7 of the WIM Act provides for medical assessment, including the assessment of the degree of a person's WPI, by an AMS and, by way of review, by appeal panels.
AMS' are appointed under the WIM Act to deal with 'medical disputes' which are defined in s 319 of the WIM Act to mean: "319 Definitions In this Act: … "medical dispute" means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, … (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable."
Section 325 of the WIM Act relates to the medical assessment certificate. It reads: "325 Medical assessment certificate (1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the Registrar and is to: (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters, and (c) set out the approved medical specialist's reasons for that assessment, and (d) set out the facts on which that assessment is based. …"
Appeals against medical assessments in relation to fresh or additional evidence are governed by ss 327 and 328 of the WIM Act. Those sections relevantly read: "327 Appeal against medical assessment … (3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. … "328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment. … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. …" [my emphasis]
Section 331 of the WIM Act requires an Appeal Panel to apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016) ("the Guidelines") when conducting a review. Section 331 relevantly reads: "331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."

[6]

The plaintiff's submissions in the first tranche of evidence submitted on 23 December 2020

As noted at [12] of this Judgment, on 23 December 2020 the plaintiff provided a first tranche of evidence in support of her appeal of the decision of the AMS. In her first tranche submissions, the plaintiff's solicitor addressed the relevance of the additional material at [9]-[18]. Paragraphs [10]-[18] of the plaintiff's first tranche submissions relevantly read (Ex A, 181): "[10] With the exception of the earlier Certificates of Capacity (which are included because they have become relevant, all the further documents were not available when the application was filed and were not before Dr Roberts. The Certificate of Capacity dated 23 November 2020 and the further statement of the [plaintiff] dated 23 December 2020 (dealing with her present condition and treatment since the assessment with Dr Roberts) were not in existence (and could not be) at the time of Dr Roberts' assessment. [11] The report of Dr Saulnier provides a diagnosis of Adjustment Disorder with Anxiety, describes recent exacerbations of the [plaintiff's] anxiety condition, and describes a deterioration in the [plaintiff's] functioning. Dr Saulnier states that she has not commenced any specific trauma treatment yet as the [plaintiff] continues to feel unsafe and under threat (consistent with paragraph [19] of the [plaintiff's] further statement). The opinion of Dr Saulnier is relevant to the assessment of the [plaintiff's] impairment, but also to the question as to whether her condition is stable enough to be assessed. [12] The patient health summary of Dr Lorenzo contains numerous entries dealing with the [plaintiff's] anxiety relevant to the assessment: (a) On 28 April 2020 it is recorded that the [plaintiff] feels "overwhelmed at home". (b) On 28 May 2020 it is described that the [plaintiff] found it really difficult to travel to Windsor due to "worrying and thinking about she would do if she sees her previous boss". (c) On 24 June 2020 it is recorded that the [plaintiff] is "still getting nightmares... anxious about bringing daughter to dance studio - this is behind the Galston Family Practice. (d) On 27 July 2020 it is described how the [plaintiff] suffered a panic attack when she saw her employer's car parked in Galston Shopping Village. (e) On 7 August 2020 Dr Lorenzo records "Belinda has been showing signs of mental health deterioration" and "I need to encourage Belinda to take medications". This note was the result of a phone call with the [plaintiff's] psychologist Dr Saulnier. (f) On 26 August 2020 Dr Lorenzo records "I spoke with the psychologist and she is worried about her... instead of getting better- she is going downhill... having nightmares again". These further notes are clearly relevant as to the assessment of permanent impairment and also to the question as to whether or not the [plaintiff's] condition is sufficiently stable to be assessed. [13] The Certificates of Capacity confirm that the [plaintiff] has been certified as having no work capacity for any employment from 17 December 2019 and remains under that certification until at least 15 January 2021. The latest certificate dated 23 November 2020 records that the [plaintiff] is "unlikely to improve in the next 12 months". The certification that the [plaintiff] is totally incapacitated is at odds with the assessment of Dr Roberts, who appears to find that the [plaintiff] would be able to undertake some level of work. Alternatively, it may be evidence of a deterioration of the [plaintiff's] work capacity since the assessment with Dr Roberts on 11 November 2020. [14] Further, the [plaintiff] also relies on the Certificates of Capacity (as well as the [plaintiff's] further statement) in support of her contention that there is a demonstrable error in Dr Roberts report relating to "employability". On page 3 of his report Dr Roberts records in respect of December 2019: "she acknowledged a limited recollection of the Christmas period. During that time her parents were being "barraged" with phone calls from Dr Thomas. Notwithstanding her profound depression at that time, Ms Field-Whittaker continued to perform her responsibilities at work." [plaintiff's emphasis] The [plaintiff] did not continue to perform her responsibilities at work during the Christmas period of December 2019. She was totally incapacitated for work and in receipt of workers compensation. The [plaintiff's] further statement at paragraph [2] also deals with this error. [15] Aside from that referred to above, the [plaintiff's] further statement also addresses her current level of functioning as at 23 December 2020 (see paragraphs [3]-[11] & [14]) and refers to the ongoing aggravation of her situation by the online publication made about her (see paragraph [13]). [16] Paragraphs [15]-[19] describe the [plaintiff's] current treatment, her recent attendances on Dr Saulnier and Dr Lorenzo (subsequent to Dr Roberts' assessment) and the recommendation and plan to see a psychiatrist for treatment (see paragraph [17]) and also commence anti-anxiety medication (see paragraphs [17] and [19]). [17] Perhaps consistent with the insurer's position at the outset of these proceedings, the [plaintiff's] statement (and the other evidence) regarding her current condition and treatment suggests that the [plaintiff's] condition may not yet be stable enough to assess permanent impairment or has deteriorated since the assessment by Dr Roberts. This is accordingly relevant to the assessment. [18] It is submitted that it is in the interest of justice to put the further relevant information before the Approved Medical Specialist or Appeal Panel."

[7]

The employer's submissions accompanying its Notice of Opposition on 13 January 2021

As noted at [13] of this judgment, the employer submitted a Notice of Opposition to the plaintiff's appeal. The employer made the following submissions in relation to the issue of fresh evidence, in support of its Notice of Opposition (Ex A, 243): "[6] The [plaintiff] seeks to rely on the following further information: - Report of Dr Saulnier dated 31 August 2020; - The [plaintiff's] resignation letter dated 4 September 2020; - The [plaintiff's] Patient Health Summary recorded as at 20 September 2020; - Various WorkCover Certificates of Capacity; and - A statement dated 23 December 2020. [7] Section 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that a party may appeal on the grounds of additional relevant information only if the additional information was not available to, and could not reasonably have been obtained by, the [plaintiff] before the medical assessment appealed against. [8] The [employer] submits that the above material, save for the Certificate of Capacity dated 23 November 2020 and the [plaintiff's] statement dated 23 December 2020, was available and could have been reasonably obtained prior to the medical assessment on 11 November 2020. [9] Given this, the [employer] submits that the additional information does not meet the criteria as required by Section 327(3)(b) and cannot form the basis of an appeal. [10] Further, the [employer] submits that it was open to the [plaintiff] to file an Application to Admit Late Documents in respect of these documents prior to the medical assessment, but did not do so and has provided no explanation for why these documents were not filed or served prior to the filing of this Appeal. [11] The [employer] submits that, in the absence of a satisfactory, or any, explanation for delay in serving these documents, the [plaintiff] should be precluded from reliance on the following documents: a. Report of Dr Saulnier dated 31 August 2020; b. The [plaintiff's] resignation letter dated 4 September 2020; c. The [plaintiff's] Patient Health Summary recorded as at 20 September 2020; d. WorkCover Certificates of Capacity prior to 26 November 2020. [12] The [plaintiff's] supplementary statement dated 23 December 2020 details her functioning from her own perspective. We submit that this is consistent with that recorded by the AMS and does not contain any new evidence of relevance. The Certificate of Capacity is also consistent with the previous certificates and does not take the matter further. [13] The [employer] submits that the evidence now relied upon is not relevant and therefore does not meet the criteria of being "additional relevant information" as required by Section 327(3)(b) and cannot form the basis of an Appeal. [14] The [employer] further submits that the introduction of the further evidence falls foul of Rule 10.3 of the Workers Compensation Rules 2011, which prevents a party from introducing evidence that has not been lodged and served with its dispute application or Reply. The [employer] submits that, as the material contains no new evidence of relevance to the current dispute, it is not in the interests of justice to allow the introduction of this evidence as permitted by Rule 10.3(4)."

[8]

The plaintiff's submissions in the second tranche of evidence submitted on 22 January 2021.

As noted at [14] of this judgment, on 22 January 2021 the plaintiff made further submissions in support of her appeal in the second tranche of evidence. The plaintiff's second tranche submissions relevantly read (Ex A, 250): "[1] … [2] The [plaintiff] now seeks to also rely on the following additional relevant information not reasonably available when the application was filed: E Report of psychologist Dr Stephanie Saulnier 19 January 2021 F Further Statement of Belinda Field-Whittaker dated 21 January 2021 [3] The documents above constitute additional relevant information not reasonably available at the time of the earlier assessment. [4] The report of Dr Saulnier documents a deterioration of the worker's condition over the previous few months, such that the worker now qualifies for a diagnosis of Major Depressive Disorder with moderate to severe levels of anxious distress. The report describes how this has affected various facets of her life in a worsening way such as would be capable of varying the previous assessments. [5] Consistent with Dr Saulnier's report, the worker describes her condition in her statement as worsening and that her GP Dr Lorenzo has now arranged for her to trial medications. This trial of medications is ongoing. [6] The further evidence it is submitted supports the worker's submission that there has been a deterioration in her condition since the assessment. [7] As previously submitted, the [plaintiff] seeks a reassessment by a member of the Appeal Panel having regard to the additional relevant information and the errors in the medical assessment certificate. [8] It is submitted that having regard to the further information and/or the errors identified that the [plaintiff] ought to be assessed 15% WPl or greater. [9] In the alternative, it is submitted that given that the evidence as to the changes in the [plaintiff's] condition, apparently over recent months since the assessments by Dr Allan and Dr Whetton, and since the assessment by Dr Roberts, that the [plaintiff's] impairment is not presently capable of being assessed."

[9]

The plaintiff's submissions in the third tranche of evidence submitted on 9 February 2021

As mentioned at [16] of this Judgment, on 9 February 2021 the plaintiff submitted a third tranche of evidence, comprised of the Allan Report 3.2.21 and a brief letter making submissions (Ex A, 255). That letter relevantly reads: "We refer to the above Appeal Against a Decision of AMS and enclose the following further documents for filing (as per the enclosed index): 1. Report of Dr Martin Allan (psychiatrist) dated 3 February 2021. The report was received after hours on Friday 5 February 2021 following a re-examination on 2 February 2021. Dr Martin had previously examined the [plaintiff] in June 2020 and produced a report dated 1 July 2020 which was filed with the initial Application to Resolve a Dispute. This further assessment was arranged to have regard to the evidence of deterioration from the [plaintiff] and her treating doctors, her continued psychological treatment, and the commencement of medication, to obtain an updated assessment of whole person impairment. Dr Allan, like the [plaintiff's] treating psychologist, has now diagnosed Major Depressive Disorder and assesses the [plaintiff] as having 19% WPI. He had previously diagnosed Adjustment Disorder but has now "observed that her symptoms have evolved and she now meets the criteria for a major depressive disorder" (p10). The document sought to be relied upon did not and could not have existed at the time of the medical assessment or the filing of the Appeal and relate to the worker's condition and treatment in January 2021. It provides an updated assessment of the [plaintiff's] condition as at February 2021 following a deterioration of her condition (as reported by the [plaintiff] and her treatment providers) and the commencement of medication. The document constitutes additional relevant evidence and is relevant to assessing the deterioration of her condition. We accordingly seek to rely to on the further document."

[13]

The Appeal Panel's Substantive Decision dated 28 May 2021

In relation to the issue of additional evidence, at [8]-[16] of the Appeal Panel's Substantive Decision under the heading 'Fresh evidence' the Appeal Panel relevantly writes (Ex A, 26): "[8] Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment. [9] The appeal was filed on 23 December 2020." … [13] Additional submissions filed by the [employer] on 15 February 2021 raised objection to this material. The [employer] added: "a. Pursuant to Section 327(5) of the 1998 Act, the [plaintiff] is out of time file any further evidence in relation to her appeal; b. the [plaintiff] has failed to satisfy the criteria that there are any special circumstances which justify an increase in the period for an appeal; c. the further material provided by the [plaintiff] is not relevant, does not take thematter further and/or could have been obtained prior to the AMS assessment." [14] In our preliminary review, the Panel noted all this additional evidence. It was rejected because most of that evidence pre-dated the assessment by the [AMS], and there was no explanation as to why it was not filed and submitted to the [AMS]. Given that a re-examination was to take place, the [plaintiff's] additional statements were also rejected. [15] We accepted the [employer's] submissions. [16] The Panel also had regard to the comments of Hoeben J in Petrovic v BC Serv No 14 Pty Limited and Ors [2007] NSWSC 1156 where he said: '"additional relevant information' contemplated by section 327(3)(b) means:'... information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment... It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not "additional relevant information" for the purposes of subs 327(3)(b)... There is another consideration which I have taken into account. If the function of the Registrar under s327 is to be in reality that of a gatekeeper, then statutory declarations such as were sworn in this case should not be regarded as "additional relevant information" for the purposes of s327(3)(b). If they are, it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal."
Under the heading 'submissions' the Appeal Panel stated (Ex A, 27): "[20] Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel."

[14]

Relevant caselaw

At the hearing of this judicial review, both parties referred to Petrovic v BC Serv no 14 Pty Ltd & Ors [2007] NSWSC 1156 ("Petrovic") at [31] to [33], where Hoeben J stated: "[31] In my opinion the words "availability of additional relevant information" qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, "additional relevant information" for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b). [32] It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not "additional relevant information" for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar. [33] It is not without significance that criticisms of an AMS of this kind were raised in Vegan and were specifically referred to by Basten JA in his review of the matters which were referred to the Appeal Panel [88] - [97]. The alleged factual errors made by the AMS in recording the worker's complaints in that case were not placed before the MAP as additional relevant information but rather as matters arising under either s327(3)(c) or (d). A similar question was considered by Associate Justice Malpass in Wilkie v Motor Accidents Authority of NSW and Anor [2007] NSWSC 1086 at [41] - [48]. Although his Honour appears to favour the approach which I propose, it was not necessary for his Honour to reach a final conclusion."

[15]

The plaintiff's submissions to this Court

The plaintiff submitted that the Appeal Panel's determination to reject all the plaintiff's further evidence was contrary to the terms of the WIM Act and the Guidelines and constituted a jurisdictional error.
The plaintiff submitted that the Appeal Panel fell into error in its application of the relevant legislation to the question of additional evidence. In the plaintiff's submission the reasons given in the Appeal Panel's Preliminary Decision purport to apply s 327(5) of the WIM Act which on its terms only relates to appeal grounds raised under 327(3)(c) and (d) of the WIM Act. The plaintiff submitted that the Appeal Panel created a prima facie time limit for those appeals and had nothing to say on the admission or rejection of evidence.
The plaintiff noted that in the Preliminary Decision, the Appeal Panel made a decision based on the assessment conducted by Dr Parmegiani which certified that the plaintiff suffered a 7% WPI. In the Substantive Decision under the heading "Preliminary Review" the Appeal Panel reiterated the findings in their Preliminary Decision, including in relation to the rejection of the fresh evidence, and purported to give further reasons. The plaintiff submitted that arguably the decision to reject the fresh evidence, and the reasons for the same, ought properly be seen as contained in the Preliminary Decision. The plaintiff submitted that the decision to reject had already been made by the time of the Substantive Decision, however, to the extent that paragraphs [8]-[17] of the Substantive Decision give further reasons for rejecting the fresh evidence, those further reasons also disclose error in applying the statutory provisions.
The plaintiff noted that at [13] of the Substantive Decision, the Appeal Panel referred to submissions made by the employer to the effect that the fresh evidence should be rejected because the plaintiff was "out of time" pursuant to s 327(5) of the WIM Act, and had failed to satisfy the "Special Circumstances" test in that section.
The plaintiff also noted that at [15] of the Substantive Decision, the Appeal Panel accepted these submissions as to the relevance and application of s 327(5) of the WIM Act to the fresh evidence sought to be relied upon by the plaintiff.
However, in the plaintiff's submission s 327(5) of the WIM Act has no application to grounds of appeal under s 327(3)(a) or (b) and was accordingly not relevant to the issue the Appeal Panel were deciding.
Further, in the plaintiff's submission the quoted passage from Petrovic at [16] of the Substantive Decision, is not relevant to the plaintiff's case and the Appeal Panel misquoted and ultimately misunderstood what Hoeben J was saying at [31]-[34]. The plaintiff submitted that His Honour was not suggesting that a statement from an injured worker updating their symptoms or circumstances could not be "additional fresh evidence" within the meaning of 327(3)(b). Rather the quoted passage relates to allegedly fresh evidence that goes to the process or the manner of making the assessment. The plaintiff submitted that the fresh evidence sought to be relied upon here was information of a medical kind or which is directly related to the decision required to be made by the AMS.
In the plaintiff's submission, the correct focus should have been upon ss 327(3)(b) and 328(3) of the WIM Act. The plaintiff submitted that while the considerations in those sections are touched upon by the Appeal Panel, it is clear that the erroneous considerations referred to above largely informed the decision.
Further, the plaintiff submitted that the Appeal Panel was in error in finding that there was no explanation as to why the plaintiff's additional evidence was not filed and submitted in the original medical assessment. In light of what the plaintiff included in supporting submissions, such a finding was not available on the evidence and submissions before the Appeal Panel.
In the plaintiff's submission the consequence of rejecting all of the plaintiff's fresh evidence led to the rejection of the ground of appeal based on additional relevant information. This consequently led to a finding there was no evidence of any deterioration.

[16]

The employer's submissions to this Court

The employer noted that the Appeal Panel's Preliminary Decision indicates that the plaintiff's additional evidence was rejected on the basis that an insufficient explanation was given for it not having been provided. The employer also noted that the additional statement was rejected on the basis that a re-examination was to take place, with what the employer said, was the evident effect that it would supersede the statement.
The employer also noted that s 327(5) of the WIM Act was referred to in relation to the documents filed after the appeal. The employer further noted that the plaintiff's appeal had not sought to rely on those documents, and did not seek to commence a fresh appeal (eg, alleging deterioration between the date of filing the appeal and the date on which the Filed After Appeal Documents were filed). There were additional bases on which the Appeal Panel concluded that the further evidence should not be admitted.
The employer opined that it was not clear why the plaintiff alleged that the decision not to accept further evidence was contrary to the Guidelines. The employer submitted that there was no such error.
The employer noted that the plaintiff's written submissions to this Court at [13] suggest that the Appeal Panel "mis-quote and ultimately mis-understand" an indication of Hoeben J at Petrovic. The employer submitted that there is no evident misunderstanding in the Appeal Panel's reference to this decision, and it is unclear what is said to have been misquoted. In the employer's submission, Petrovic, as noted by the Appeal Panel, contains helpful guidance on when additional information may be relevant. The employer noted that the materials sought to be relied on by the plaintiff addressed many matters which were not relevant, such as defamation proceedings she had commenced.
In relation to Judicial Ground (3), the employer noted that the plaintiff's first tranche submissions stated at [10] that: "With the exception of the earlier Certificates of Capacity (which are included because they have become relevant) all the further documents were not available when the application was filed and were not before Dr Roberts." The employer submitted that this does not explain why the historical health summary provided by the plaintiff's GP was said not to have been available, or why developments in Dr Saulnier's or the plaintiff's GP's assessments following the assessment by the AMS are material.
The employer submitted that the Appeal Panel accepted the employer's submissions in rejecting this evidence. Those submissions appear at [6]-[14] of the Substantive Decision. The employer noted that it had also submitted that (Ex A, 244): "Whilst we do not consider the new information ought to be admitted into evidence for the reasons outlined above, we note that it refers to a deterioration in August 2020. This pre-dates the medical assessment on 11 November 2020. The AMS has appropriately examined the plaintiff since her alleged deterioration and has provided his opinion and findings, as well as his assessment of WPI, based on her current condition and level of functioning".
In oral submissions at the hearing, Counsel for the defendant submitted that the Appeal Panel stated that it did consider all the materials (T24.22-33).

[17]

Resolution - Additional relevant evidence

The plaintiff sought to rely on additional relevant information which she asserted was not reasonably available when the appeal application was filed.
I accept that some of the so-called additional evidence repeated past events that occurred before the decision of the AMS so they could have reasonably been obtained by plaintiff prior to that decision.
However, the Appeal Panel erred when it adopted the insurer's submissions that s 327(5) of the WIM Act was applicable. The Appeal Panel stated at [13] and [15] of the Substantive Decision that pursuant to s 327(5) of the WIM Act, the plaintiff was out of time to file any further evidence in relation to her appeal. The Appeal Panel further stated that in their Preliminary Decision, they noted all the additional evidence. The additional evidence was ultimately rejected because it pre-dated the assessment by the AMS and there was no explanation as to why it was not filed and submitted at that time. Given that a re-examination was to take place, the plaintiff's additional statement was also rejected.
Section 327(5) of the WIM Act reads: 327 Appeal against medical assessment … (5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.
In the reasons given in the Preliminary Decision, the Appeal Panel adopted the employer's submissions and applied s 327(5) of the WIM Act as part of its reasoning process. Section 327(5) adds another threshold requirement that the plaintiff has to demonstrate special circumstances to justify an increase in the period for an appeal. Section 327(5) only relates to appeal grounds raised under ss 327(3)(c) and (d) not ss 327(a) or (b). This is seemingly appropriate as if s 327(5) of the WIM Act applied to ss 327(a) or (b), a 28-day time limit would be imposed on claims of deterioration which intuitively would occur over a longer time period and so may be erroneously excluded, and on the provision of additional relevant information the attainment of which the appellant may not exercise any control.
Sections 327 (c) and (d) of the WIM Act do not apply here. The plaintiff relied upon s 327(b) dealing with the availability of additional information and also s 328(3). Neither of those provisions impose a time limit of 28 days, nor do they require that there be "special circumstances."
On the issue of the Appeal Panel's interpretation of Petrovic. It is my opinion that the Appeal Panel misunderstood what was said. Hoeben J at [31] to [33] was referring to the plaintiff's evidence before the AMS. This is not the situation here as the plaintiff was updating what she says is her deteriorating medical condition. The Appeal Panel decided that this statement should be rejected on the basis that she could give this evidence when she was re-examined by Dr Parmegiani. However, it may have been better considered along with the other additional evidence. The Appeal Panel applied the correct test, the additional material did constitute additional evidence as defined in s 328(3) of the WIM Act. By applying s 327(5) of the WIM Act, the Appeal Panel made an error of law on the face of the record.

[19]

Psychiatric Impairment Rating Scale (PIRS)

Clauses 11.11-11.13 of the Guidelines set out the PIRS. Clause 11.11 relevantly reads: "11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment: 1. Self care and personal hygiene (Table 11.1) 2. Social and recreational activities (Table 11.2) 3. Travel (Table 11.3) 4. Social functioning (relationships) (Table 11.4) 5. Concentration, persistence and pace (Table 11.5) 6. Employability (Table 11.6).
Clause 11.12 of the Guidelines provides: "11.12 Impairment in each area is rated using class descriptors. Classes range from 1 to 5 in accordance with severity. The examples of activities are examples only. The 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."
This judicial review is concerned with scale 5 (concentration, persistence and pace) and scale 6 (employability). Tables 11.5 and 11.6 are as follows: "Table 11.5: Psychiatric impairment rating scale - concentration, persistence and pace Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. 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. Class 4 Severe impairment: Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief concentration. Unable to live alone, or needs regular assistance from relatives or community services. Class 5 Totally impaired: Needs constant supervision and assistance within institutional setting.

[21]

Relevant case law

Both parties referred to Ballas v Department of Education (State of NSW) [2020] NSWCA 86 ("Ballas"), the Court of Appeal per Bell P (with whom Payne JA and Emmett AJA agreed) explained the PIRS at [93]-[95] as follows: "[93] Whilst it is no doubt correct that an AMS 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 other 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 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. [95] In the present case, it was plainly "arguable", to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale "social and recreational activities" when he made reference in his reasons to "[s]ees one friend regularly" (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled "Social functioning (relationships)" to which that conduct is more directly relevant."

[22]

The Appeal Panel's decision in relation to PIRS - Concentration, persistence, pace

The Appeal Panel stated at [45]-[60] of their Substantive Decision: "[45] CPP was assessed as Class 2, the [AMS] stating: "Ms Field-Whittaker reported a decline in her functioning in this regard. She described herself as losing focus and being less organised and efficient. She participated effectively in a lengthy interview and no deficits of a cognitive nature were apparent. Overall, it is appropriate to conclude that she is mildly impaired in this area." … [49] In our view, the [AMS] identified the nature and extent of the [plaintiff's] activities of "homemaking and parenting" in the context of the level of organisation, concentration (for example, supervising homework), management and functioning required to undertake this full-time activity when assessing her capacity for employment. … [52] Although we did not agree that the [AMS] erred in his assessment of employability, the Panel nevertheless decided to include it as part of the re-examination process because of the numerous issues raised by the [plaintiff] and for what we considered 'completeness' of the appeal. [53] As regards the other categories challenged by the [plaintiff], the submissions generally focused on the conclusions reached by Dr Allan which it was submitted ought to have been adopted by the MA. [54] Although we did not agree with all those submissions, we did agree that the [AMS] had erred in that he misapplied the criteria relevant to these categories. [55] For example, as regards social functioning, the [AMS] appeared to focus on what he described as a positive relationship with the [plaintiff's] family, and the length of some friendships in concluding that a Class 1 was appropriate. [56] The descriptor for a Class 1 reads: "No deficit or minor deficit attributable to the normal variation in the genera! population..." [57] The [plaintiff] clearly described some strain in her family relationships and also said that she saw only one friend occasionally. [58] The panel concluded that a re-examination was appropriate. [59] Dr Julian Parmegiani of the Appeal Panel conducted an examination of the worker on 5 May 2021. [60] He [reported] as follows: … Concentration, Persistence and Pace - Class 2 "Ms Field-Whittaker reported an impairment of concentration. She was however able to manage her finances, and order groceries online. She looked after her two-year-old daughter in 2020, on a fulltime basis. The task of looking after a two-year-old child requires a degree of persistence, concentration, and a capacity to perform complex tasks. Ms Field-Whittaker spent up to two hours on the internet, scrolling through her Facebook feed. She posted material from time to time. Ms Field-Whittaker drove a motor vehicle. She did not have motor vehicle accidents over the past 12 months. She only received a traffic fine for speeding, less than 10km above the speed limit."

[23]

The Appeal Panel's decision in relation to PIRS - Employability

With regards to employability, the Appeal Panel noted that Dr Parmegiani reported as follows (Ex A, 34): "Employability - Class 3 Ms Field-Whittaker told me she could not return to work because she no longer trusted prospective employers. She lacked confidence and self-esteem. Ms Field-Whittaker was however able to perform productive activities that could attract remuneration in a different setting. She looked after her daughter fulltime in 2020. She took her children to sporting activities on weekends. She purchased groceries online and she prepared meals. Ms Field-Whittaker would however struggle to work more than 20 hours per week for an employer, due to her reduced energy and poor motivation."
Under the heading 'Findings and Reasons' in relation toemployability the Appeal Panel stated: "[46] The [AMS] assessed a Class 3 for employability stating: "Ms Field-Whittaker's psychiatric symptomatology is of a nature that it is expected that she could not engage in work at the level at which she was previously employed. Her emotional fragility is likely to undermine her capacity to manage staff. Although she was employed as a part-time employee, her account reflected participation in full-time work. Ms Field-Whittaker is currently engaged in full-time homemaking and parenting responsibilities, although she is supported by her husband. She also provides support and assistance to her mother, it is expected that as an effect of her psychiatric condition, she would be unable to undertake more than 20 hours of work per week and she would not be able to engage in a role of the level of sophistication of that in which she was previously employed." [47] Dealing firstly with the category of employability, the [plaintiff] submits as follows: "Dr Roberts has assessed the [plaintiff] as being Class 3 in respect of employability. It is unclear the basis for this assessment. The [plaintiff] has not worked since December 2019, has been certified unfit by her treating doctors, and found to be totally incapacitated by psychiatrists Dr Allan and Dr Whetton. She is paid weekly benefits compensation on the basis of total incapacity. There is no explanation in the PIRS table or in the body of the report as to how the [plaintiff's] homemaking and parenting responsibilities, or the assistance she gives to her mother, demonstrate a capacity to work. It seems to be assumed by Dr Roberts however, that this means the [plaintiff] could work. To that extent there is a failure to give adequate reasons... Dr Roberts goes on to say that the [plaintiff] would be unable to undertake more than 20 hours of work per week and that she would not be able to engage in a role of the level of sophistication of that in which she was previously employed. He does not say how or why this is the case, in light of the fact that all other medical evidence seems to contradict this finding. Dr Roberts also does not express any opinion in the report or in the PIRS summary as to what work the [plaintiff] can do. His finding is limited to what she cannot do. If Dr Roberts is of the view that the [plaintiff] could work in some other role for limited hours, this should be expressly stated with reasons... On the basis of the evidence available "employability" should be assessed at Class 5." [48] At our preliminary review, the Panel was not persuaded that the [AMS] had erred in his assessment with regard to this category. [49] In our view, the [AMS] identified the nature and extent of the [plaintiff's] activities of "homemaking and parenting" in the context of the level of organisation, concentration (for example, supervising homework), management and functioning required to undertake this full-time activity when assessing her capacity for employment. [50] The [AMS] is required to make an assessment on the day of the examination … [52] Although we did not agree that the [AMS] erred in his assessment of employability, the Panel nevertheless decided to include it as part of the re-examination process because of the numerous issues raised by the [plaintiff] and for what we considered 'completeness' of the appeal."

[24]

The plaintiff's submissions

The plaintiff submitted that the Appeal Panel made a jurisdictional error by failing to find error in the AMS' PIRS assessment of "Employability". The plaintiff noted that, having not so found, the Appeal Panel nonetheless purported to reassess that PIRS category, coming to the same assessment as the AMS. In the plaintiff's submission, the assessment was infected by apprehended bias, given the starting point was a statement that there was in fact no error by the AMS.
The plaintiff noted that on the basis of the evidence available it was submitted that "employability" should be assessed at Class 5. Such an assessment, it was observed, accorded with the substantive medico-legal opinions relied upon by both the plaintiff (Dr Allan) and the defendant (Dr Whetton).
The plaintiff submitted that the "activities" referred to in [49]-[50] of the Substantive Decision appear to be those described under "Social activities/ADL" at pages 4-5 of the MAC (Ex A, 164). If not, they do not appear to be described anywhere else. It is difficult to see how what is recorded on those pages as demonstrating "organisation, concentration…, management and functioning required to undertake this full-time activity". The plaintiff submitted that there is no explanation anywhere in the report as to how any of this activity equates to work capacity. The AMS (and the Appeal Panel) appear to assume that there must be such a capacity because the plaintiff has a young child at home with her "full-time".
In the plaintiff's submission the Appeal Panel made a jurisdictional error in misapplying the Guidelines by wrongly equating and conflating ability to perform remunerative work with ability to pursue parental duties and attend to some of the activities of daily living. In so doing, the Appeal Panel conflated the separate considerations of different PIRS categories in the Guidelines.
The plaintiff noted that the Guidelines require an evaluation of the consequences of psychiatric disorder across six scales, each of which evaluate an area of functions. 11.11 differentiates Social Functioning (Table 11.4), Travel (Table 11.3) and Social and recreational activities (Table 11.2) as part of a broader category of "Activities of Daily Living". Employability (Table 11.6) stands apart from those activities of daily living and is unequivocally to be evaluated as a distinct area of functional impairment.
The plaintiff submitted that the Appeal Panel repeated and augmented the error of the AMS by seemingly endorsing the reliance on demonstrated abilities in "homemaking and parenting" as relevant to and comparable to a capacity for employment.
The plaintiff submitted that it is unclear how these activities could "attract remuneration in a different setting" unless the Appeal Panel intended to suggest that it demonstrates a present capacity for the plaintiff to work in childcare or child minding. There is no evidence of this except that the plaintiff looked after her daughter in 2020. The plaintiff noted that looking after one's children is different to being employed to look after children, and submitted that on this reasoning, every injured worker who was capable of looking after their own child (seemingly without any consideration of how well or not this is being done) must have work capacity.
Similarly, in the plaintiff's submission the Appeal Panel repeated this error in respect of the assessment of the plaintiff's concentration, persistence and pace, which again was based largely on the plaintiff's parenting of her two-year-old child in 2020. While the plaintiff accepted that looking after a child does demonstrate a degree of persistence, concentration, and a capacity to perform some complex tasks (as stated by Dr Parmegiani), there is no analysis or description in the decision as to what degree the Plaintiff can or cannot do this due to her injury.
The plaintiff noted that the ability to care for one's children or assist elderly parents is a clearly demarcated part of the "Social Functioning" to be assessed under Table 11.4. The Guidelines (at 11.12) instruct an AMS to "consider activities that are usual for the person's age, sex and cultural norms" when rating functionality. The Guidelines' instruction to focus on typical or "usual" activities demonstrates that the plaintiff correctly identified error by the AMS in not determining what work the plaintiff could do. To simply point out that the plaintiff can attend to some of the activities of daily living, does not, in the plaintiff's submission, bespeak of an ability to be gainfully employed on the open labour market.
The plaintiff submitted that the utilisation of an irrelevant factual matter to inform the assessment of functionality within a particular PIRS category is a jurisdictional error: see Perry v George Weston Foods Limited [2021] NSWSC 359 per Rothman J especially at [71] to [77].
The plaintiff submitted that the AMS failed to give any or adequate reasons for the assessment of the plaintiff's "employability" and the Appeal Panel should have found demonstrable error.
The plaintiff noted that another way of framing her argument is that the Appeal Panel constructively failed to exercise a statutory function in that it failed to carry out its assessment in accordance with the Guidelines, and/or the Appeal Panel Certificate is vitiated by jurisdictional errors and/or errors on the face of the record, and should be set aside.

[25]

The employer's submissions

The employer noted that at [25]-[27] and [34]-[35] of its submissions in support of its Notice of Opposition it stated (Ex A, 245): "[25] The [employer] confirms that the PIRS categories are examples of activities only (clause 11.12 of the Guidelines) and are "generic and general in their description": Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [62]. [26] The [employer] submits that the assessment of the appropriate class of impairment within each PIRS category falls within the realms of clinical judgement. The importance of the AMS's clinical judgement has been emphasised by the Court. In this regard, we refer to Campbell J's comments in Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (Ferguson) at [33]: "By reference to NSW Police Force v Daniel Wark [2012] NSWCCA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: '... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face'." [27] The [employer] also submits that a difference of opinion is not a demonstrable error, in accordance with Merza v Registrar of the Workers Compensation Commission and Anor [2006] NSWSC 939 at [51]."
The employer noted that the Appeal Panel's consideration of the employability category appears in the Substantive Decision at [46]-[52]. In the employer's submission the Appeal Panel did not consider that the AMS had erred in having regard to "homemaking and parenting" in the context of assessing this criteria. Rather in the Appeal Panel's view "the [AMS] identified the nature and extent of the plaintiff's activities of 'homemaking and parenting' in the context of the level of organisation, concentration (for example, supervising homework), management and functioning required to undertake this full-time activity when assessing her capacity for employment" (at [49] of the Substantive Decision).
The employer noted that nevertheless, the Appeal Panel (at [52] of the Substantive Decision) decided that even though it did not agree that there had been error in assessing this criteria, it would "include it as part of the re-examination process because of the numerous issues raised by the [plaintiff] and for what [they] considered the 'completeness' of the appeal". In re-assessing the plaintiff, Dr Parmegiani agreed that a score of "Class 3" for employability was appropriate, because she was "able to perform productive activities that could attract remuneration in a different setting" (at [60] of the Substantive Decision).
The employer noted that both the AMS, and Dr Parmegiani, concluded following two separate examinations that this was the appropriate assessment of the plaintiff's impairment. There was, in the employer's submission, no error in this determination and the ground is not established.
The employer submitted that the reasons provided by the Appeal Panel meet the standard addressed in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, and this ground is not established.

[26]

Resolution - PIRS Assessment of concentration, persistence, pace and employability

As was explained in Ballas at [91]-[92], while it is correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which they are 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 other five scales on the other hand, is not a matter of discretion. While there may 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 categorisation of the conduct, i.e. whether it goes to "self-care and personal hygiene", "social and recreational activities", "travel", "social functioning (relationships)", "concentration, persistence and pace" or "employability". This task 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.
Clause 11.12 of the Guidelines provides that impairment in each area is rated by using class descriptors. Classes range from 1 to 5 in accordance with severity. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background, and consider activities that are usual for the person's age, sex and cultural norms.
The Appeal Panel assigned class 2 for concentration, persistence and pace, the same class as the AMS assigned. The Appeal Panel agreed that the AMS erred when he misapplied the relevant criteria to these categories. It was concluded that a re-examination by Dr Parmegiani was appropriate: see the Substantive Decision at [54]-[55]. The Appeal Panel adopted Dr Parmegiani's ratings under the 6 Classes. These class descriptors are "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." Part of the Appeal Panel's reasoning for assigning that class referred to the plaintiff being able to manage her finances, order groceries online and look after her two-year-old child on a fulltime basis. The Appeal Panel considered that the task of looking after a two-year-old child requires a degree of persistence, concentration and a capacity to perform complex tasks.
When the Appeal Panel determined that by being able to look after a 2 year old fits within the impairment rating scale for concentration, pace and persistence they erred as these activities should have been assigned to social functioning. In doing so, the Appeal Panel took into account an irrelevant consideration.
So far as employability is concerned, the Appeal Panel agreed with the reasoning of the AMS who assigned "class 3" for employability but decided to include it as part of the re-examination process because of the numerous issues raised by the plaintiff and for what it considered "completeness" of the appeal. Class 3 descriptors for employability are "moderate impairment." This means the plaintiff cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful)."
Part of the Appeal Panel's reasoning was again related to the plaintiff's family role looking after her daughter fulltime, taking her children to sporting activities on weekends, purchasing groceries online and preparing meals. The Appeal Panel found that these activities demonstrate abilities in homemaking and parenting. These activities are not relevant to or comparable to a capacity to employment. The Appeal Panel wrongly assigned these activities to employability when it should have assigned them to social functioning.
By assigning activities to the incorrect PIRS table the Appeal Panel took into account irrelevant considerations. This constitutes jurisdictional error.

Field-Whittaker v Thomas & Naaz Pty Ltd

At a glance

Court

Decision date

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Judgment (31 paragraphs)

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Legislation Cited (3)

Cases Cited (18)