Henderson v Canterbury Hurlstone Park RSL Club Ltd

Henderson v Canterbury Hurlstone Park RSL Club Ltd - [2024] NSWSC 473 - NSWSC 2023 case summary — Zoe

[10]

Are the reasons of the Appeal Tribunal adequate?

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, ('Wu Shan Liang') Brennan CJ, Toohey, McHugh and Gummow JJ stated at 291: "When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280; 115 ALR 1. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General v Quin (1990) 170 CLR 1 at 35-6; 93 ALR 1 at 25. "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 ('Dranichnikov'), Gummow and Callinan JJ stated at [24]: "[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made) which provided as follows: (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision."
The central issue is whether the Appeal Panel's decision conforms to law. This Court is not empowered to embark on a merits review: Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1.

[11]

The Guidelines

By way of background, in Ferguson v State of New South Wales [2017] NSWSC 887 ('Ferguson'), Campbell J explained how the PIRS operates within the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 March 2021) ('the Guidelines') at [14]: "It is necessary to set out the requirements of the Guides as to the evaluation of permanent impairment resulting from psychiatric injury. They are found in the Psychiatric Impairment Rating Scale (PIRS) which is applicable by virtue of Chapter 11 of the Guides. The requirements were summarised by the Appeal Panel in [22] to [24] of its reasons in the following terms: The Psychiatric Impairment Rating Scale ("PIRS") is established as the relevant rating indicia by virtue of Chapter 11 of the Guides in both the 09 and 16 Guides, which are the same. The PIRS sets out six categories of behaviour to be assessed, each being divided into five classes. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired by his injury, and the classes between are in an ascending order of impairment. The assessor is required to classify each category, and apply the resulting scores as set out in Chapter ll. Each class in the six categories has indicia attached, called "descriptors." Chapter 11.13 provides that: "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. 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." The indicia contained within the PIRS examples in Chapter 11 therefore are not intended to be exclusive, and are subject to the variabilities that accompany a person seeking psychiatric help, such as those matters mentioned - age, sex and cultural norms."
In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense: Ferguson at [24].
The Guidelines are split into various chapters. Chapter 1 contains the Introduction. Part 2 of that Introduction is a section dealing with the "Principles of Assessment." A subheading in Part 2 is "Adjustment for the effects of treatment". Under this subheading appears Clause 1.32.
Clause 11.11 of the Guidelines sets out the Psychiatric Impairment Rating Scale: "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)."
It is only categories 11.11(4) and (2) that are the subject of this judicial review.
The PIRS rating form for the plaintiff was set out by the Appeal Panel as follows: Table 11.8: PIRS Rating Form Name Annette Henderson Claim reference number W3686/22 DOB Xxxx Age at time of injury 45 years Date of Injury 4 Apr 11 2017 Occupation at time of injury Marketing assistant/coordinator Date of Assessment 12 October 2022 Marital Status before injury De facto Psychiatric diagnoses Persistent depressive disorder with anxious distress GAD Psychiatric treatment Psychotherapy Is impairment permanent? Yes

[14]

Clause 1.32 of the Guidelines

Clause 1.32 of the Guidelines provides as follows: "Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant's permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief."
In the Appeal Panel's decision, it noted that the Medical Assessor addressed the issue of treatment and the Medical Assessor's decision not to increase the plaintiff's WPI percentage. The Appeal Panel noted that the Medical Assessor's decision was consistent with Clause 1.32 of the Guidelines, as the claimant has not had a substantial or complete elimination of her impairment resulting from her treatment.
In relation to clause 1.32, the Appeal Panel stated: "The appellant's submissions are largely directed to the treatment allowing the appellant to return to part-time work. Employability is but one head of the PIRS categories under which impairment is rated. Allowance for the effects of treatment is only possible when treatment has resulted in substantial or total elimination of the appellant's permanent impairment. This applies across all categories. This has not been the result of treatment in this case and the Medical Assessor has not erred in this regard."
Judicial ground of review 11: "Employability is but one head of the PIRS categories under which impairment is rated. Allowance for the effects of treatment is only possible when treatment has resulted in substantial or total elimination of the appellant's permanent impairment. This applies across all categories (my emphasis)."
Judicial ground of review 12 follows on from judicial ground of review 11, which I shall refer to shortly.

[16]

The employer's submissions

The errors in judicial grounds 11 and 12 is that the Appeal Panel "misconstrued Clause 1.32" of the Guidelines (paragraph 11).
That clause, which is not specific to psychological injuries, provides that: "Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant's permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief."
Here, there was no allowance made by the Medical Assessor. The Medical Assessor directly addressed the requirements of cl 1.32 in stating his opinion that there had not been "substantial or complete elimination of impairment with treatment" (Watson, Annexure E, page 290).
This was challenged by the plaintiff, who made submissions, which were carefully considered by the Appeal Panel (which found no error in the Medical Assessor's decision). The plaintiff had an opportunity to be heard (cf Marks v Secretary, Dept of Community [2021] NSWSC 306, [67]).
The Appeal Panel's observation at [44] that the clause required "substantial or total elimination of… permanent impairment", not specific to any particular PIRS category, is entirely consistent with the wording of the provision (see generally Kempe at [30] regarding the Guidelines having the effect of subordinate legislation). The fact that a maximum of 3% in total can be added presumably in cases of complete elimination, though this is not expressly stated, is also consistent with the clause not being specific to any one of the six PIRS categories.
In In Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781, Adamson J stated at [56]: "The comparison required by cl 1.32 would appear to be both qualitative and quantitative. There must be effective long term treatment which results in an "apparently substantial or total" elimination of the original permanent impairment. The fact that an adjustment of either 1%, 2% or 3% is available as a matter of discretion would tend to suggest that there is a range between substantial and total which would permit the selection of one of those three figures. If cl 1.32 had been intended to be satisfied by a mere mathematical comparison of assessments of % WPI at different times (one absent such treatment and the other when treatment had had its effect), one would have expected the draftsperson to state that this was all that was required. Moreover, if the comparison required was merely between WPI percentages, it could be expected that the adjectives "substantial" and "total" would be defined numerically rather than by references to adjectives which would appear to warrant an evaluative, qualitative assessment."
No authority is cited for the plaintiff's proposition that the chances of a treatment resulting in substantial elimination of impairment in all PIRS categories is "nil or close to nil" [69]. By contrast, if "total elimination" of impairment by treatment was impossible then that aspect of the clause would lack meaning. Further, the employer does not agree that the effect of the Appeal Panel Decision at [44] was to suggest that an adjustment would only be made if impairment in each of the six PIRS categories could be shown to have individually and separately been reduced by treatment. The clause, which is not specific to the PIRS categories, refers generally to a substantial or total elimination of impairment - as was reflected in the Medical Assessor's finding that, generally, "there has not been a substantial or complete elimination of impairment with treatment" (Watson, Annexure E, page 290).
There are many examples of appeal panels observing that the extent of elimination of impairment necessary to engage cl 1.32 is high. There are a number of cases that explain. For example, Ibrahim v State of New South Wales (South Western Sydney Local Health District) [2021] NSWPICMP 92, an appeal panel found at [80] that: "It was clear that the appellant used medication which had some effect on her condition and enabled her to sleep well. However, the Guidelines provide that there must be substantial or complete elimination of impairment for an assessor to increase the percentage of WPI. There has not been a substantial or complete elimination of permanent impairment in this case and therefore the assessor cannot make an adjustment for effects of treatment."
In Secretary, Dept of Education v Johnson [2021] NSWPICMP 228, an Appeal Panel noted at [52] that: "The word "substantial" must be read in conjunction with the words "or total elimination". The proper construction of Chapter 1.32 is that where there is an apparent substantial elimination, or a total elimination, of the applicable WPI, further compensation can be paid. Where an injured person is under treatment which has not substantially eliminated his/her entitlement to WPI, there is no point in awarding additional compensation to that which is already available under Chapter 11 of the Guides. Chapter 1.32 is designed to compensate a person who, whilst still suffering an illness, has his/her entitlement reduced or eliminated as a result of long-term effective treatment."
The finding that the modest improvement in some of the plaintiff's symptoms as a result of treatment was not "substantial" was open to the Medical Assessor. The employer denies that an error as alleged is contained within the Appeal Panel's reasons.

[24]

Judicial Review Ground 1 to 3 - PIRS Social and Recreational Activities

The plaintiff submitted that the Appeal Panel failed to address the core issue that Dr Andrews' PIRS reasoning is at odds with the history that he took from the plaintiff.
The employer submitted that the Appeal Panel clearly engaged with the plaintiff's submissions in relation to social functioning, particularly at [18], [24], [36]-[40] of its assessment.
The plaintiff submitted in reply that this was a superficial attempt to engage with the plaintiff's argument and the Appeal Panel did not engage with the plaintiff's core complaint.
The essence of the plaintiff's appeal was summarised by the Appeal Panel as follows: "The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3."
The Appeal Panel referred the 'Psychiatric impairment rating scale' (at [36]) and the differing opinions of Dr Chow and Dr Young as to the degree of impairment in the plaintiff's social functioning (at [39]). The Appeal Panel then concluded at [40] of its decision: "The Appeal Panel considers that an assessment of a mild impairment at Class 2 accords with the criteria in that Class. Social functioning is concerned with the quality of the relationships able to be maintained by the appellant after injury. The appellant has been able to maintain good relationships with her partner, other family members and a few friends. The Appeal Panel can discern no error in the Class 2 rating which is the best fit."
The plaintiff submitted that the Appeal Panel failed to engage with her submissions or provide proper reasons in their assessment regarding an alleged fundamental error made by Dr Andrews in his assessment.
The employer submitted that the Medical Assessor's reasons were adequate. The employer submitted that the plaintiff's argument that the Appeal Panel failed to address essential matters was tending towards merits review: Ming v DPP at [15].
The plaintiff submitted that while she was allowed to speak, she was not listened to, which amounted to a failure to exercise statutory jurisdiction by the Appeal Panel.
The employer submitted that the plaintiff's argument as to why the Medical Assessor failed to exercise statutory jurisdiction is not clearly identified but assumed that it was due to not considering an essential matter.
The plaintiff submitted in reply that her core complaint was not dealt with, that being, the inconsistency between the history in the body of the Medical Assessment Certificate ('MAC') and the reasons given for awarding Class 2.
The Appeal Panel quoted the MA's history of the plaintiff's incident, symptoms, work history, social activities, and treatment. The Appeal noted that this 'history was broadly consistent with the other evidence before him' (at [21]). The quotation refers to the plaintiff's previous holidays, relationships, and social activities before the accident.
In appeal ground 2, the plaintiff submitted that the Appeal Panel did not expressly refer to the estrangement with from her twin brother.
The employer submitted that this estrangement is expressly referred to. Paragraph [37] of the Appeal Panel's decision reads: "37. The Medical Assessor assessed Class 2 with the following reasoning: "She has continuing close relationships with her partner, mother, sister, brother, niece and about four friends. She is estranged from her twin brother, who found her behaviour post-injury challenging. She has withdrawn from some friends, especially those who work for The Club." [my emphasis added]".
The plaintiff submitted in reply that her estrangement from her brother was not dealt with.

[25]

Judicial Ground 2 The plaintiff's submissions

The plaintiff made submissions to the Appeal Panel in relation to the PIRS Category of Social and Recreational Activities. Those submissions were not properly dealt with by the Appeal Panel.
In submissions, the plaintiff's solicitor recited Dr Andrews' history of the worker's pre-injury social and recreational activities. That history disclosed an active lifestyle and international travel often with friends.
The plaintiff's solicitor then went on to recite Dr Andrews' history of the worker's post-injury social and recreational activities.
There was a dramatic contrast between the pre-injury and post-injury histories which the plaintiff's solicitor went on to summarise [304] as follows "In summary, as a result of her injury, the worker has gone from having an active social life with family and friends, attending cafes, BBQs, movies, and events, and travelling overseas with friends, to now having no hobbies or projects, rarely going out and only then with her husband and close family or else not coping, refusing social invitations, and finding even going to a cinema with her husband overwhelming."
The plaintiff's solicitor then noted at [304]: "In contrast to the observations in the detailed reasoning sections of the MAC, Dr Andrews in the PIRS table (p10) simply states: "She is less socially active but still attends cafes with her sister, niece and friends. She occasionally goes to a local pool to swim, where she has a group of friends."
The plaintiff's solicitor then submitted at [305] that Dr Andrews' reasoning in the PIRS table for this category was inconsistent with the history that he himself took in the body of the report in the following respects: 1. There is no mention whatsoever of attending cafs with friends in the body of the report. There is mention of seeing her mother, sister, and her adult niece, and that that "may go walking together or to a café." (p 4), as a summary of what her entire social life now is. This is very different to attending cafés with friends. 2. There is no mention in the report of a "group of friends" at the local swimming pool. She had only recently started attending, at the encouragement of her psychologist (see above). The report records she is "often invited to social outings with people she knows from the pool but usually refuses".
The plaintiff's solicitor then submitted as follows at [305] "The PIRS summary makes no mention of ceasing all hobbies and projects, rarely going out (and then only with her husband or close relatives), refusing social invitations, and finding even going to the movies overwhelming. … It is submitted that applying the correct criteria the worker ought properly be assessed as moderately impaired in this category (class 3), the descriptor for which in the Guidelines being: "Rarely goes out to such events, and mostly when prompted by a family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn."
The plaintiff's solicitor concluded his argument submitting that the inconsistencies between the body of the report and the PIRS summary constitute a demonstrable error in the MAC at [305]
The Appeal Panel noted at [11] of its Reasons that: "Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel."
If the Appeal Panel was suggesting that the plaintiff's submissions had been repeated in part in its reasons, then it is perhaps difficult to see exactly where in the reasons that has occurred in relation to the plaintiff's core complaints about the PIRS ratings. Certainly, the underlying substance of the plaintiff's submissions are not repeated in full or in part or even paraphrased or summarised.
More importantly though, the Appeal Panel did not deal with the plaintiff's chief complaints.
The first complaint is that Dr Andrews' PIRS reasoning is at odds with the history that he himself took from the plaintiff. The history taken by a Medical Assessor is critical and the PIRS reasoning ought to accord with that history. On the history that Dr Andrews took from the Plaintiff he ought to have rated her as having a moderate impairment for Social and Recreational Activities. That fundamental error should have been apparent to the Appeal Panel.
The plaintiff made careful submissions to the Appeal Panel regarding this fundamental error by Dr Andrews. Despite this, the Appeal Panel did not engage with those submissions. It appears that the Appeal Panel was distracted from its important statutory task by formulaic statements.
The Appeal Panel's core function was to examine the plaintiff's complaints, to consider them carefully and to provide reasons to the parties for either accepting or rejecting the plaintiff's submissions. This the Appeal Panel did not do.
The plaintiff was given an opportunity to be heard by the Appeal Panel, the plaintiff "spoke" but was not in fact listened to by the Appeal Panel.
This error here can also be characterised as a failure to provide proper reasons but more fundamentally as a failure to exercise statutory jurisdiction.
For these reasons the Appeal Panel's decision must be set aside on the ground of legal error and/or failure to exercise statutory jurisdiction.

[26]

The employer's submissions - Judicial grounds 2 and 3

The employer submits that the plaintiff's submissions before the Appeal Panel in relation to the assessment of social and recreational activities were clearly engaged with, including particularly at Appeal Panel [18], [24], [29] - [35].
The plaintiff accepts that the Medical Assessor took a detailed history. It is not in issue that at the time the Medical Assessor reviewed the plaintiff, she was attending cafés and attending a pool, where she had made friends. As the employer noted in its submissions to the Appeal Panel (Watson, Annexure G, page 314 at [18]), there had many references in the reports of the plaintiff's counsellor, Maria Simonetta, annexed to the ARD that referred to the plaintiff socialising with friends (eg, Watson, Annexure C, page 122 describes a picnic with friends; page 128 describes another picnic with a friend and a cousin). As the employer submitted below and the Appeal Panel accepted, there was no evidence that the plaintiff had been unable to go out without a support person (Watson, Annexure G, page 314 [17]; Appeal Panel Decision [35]).
There was no failure to respond to a substantial and articulated case that had been advanced by the plaintiff.
Chen J addressed a similar ground in Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 ('Finnegan') from [80]; see too Ming v DPP [2022] NSWCA 209 ('Ming v DPP'), [12] (per Kirk JA). As Kirk JA noted in Ming v DPP, a "risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review" (at [15]); see also Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 ('Lancaster') at [78].
The employer does not agree that the Medical Assessor's observations in relation to the plaintiff's attendance at a café and socialising with pool acquaintances were inconsistent.
As Chen J recently wrote in Finnegan at [50]: "a mere error of fact which is patent on the face of the reasons for a decision does not render the decision liable to be set aside in proceedings by way of judicial review": [AAI v Chan [2021] NSWCA 19 per Leeming JA] at [47]. Secondly, the supervisory jurisdiction of the Court, under s 69 of the Supreme Court Act, is available to correct jurisdictional error, or error of law on the face of the record, and only errors in fact-finding when the error is within one of these categories: Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [8]. Thirdly… whether there is [any legal error] will turn upon proper analysis: "no amount of formulary" will transform something into a legal error if it is not: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527; [1990] FCA 689."
The employer also submits that the Appeal Panel's reasons were adequate.
In Lancaster at [45], Basten JA (after summarising the effect of the High Court's decision in Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43) indicated that the purpose of reasons given by an appeal panel 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."
See too Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095 ('Kempe'), at [60] (per Griffiths AJA).
In the present case, the Appeal Panel's reasons for concluding that there was not an error in the Medical Assessor's determination that the plaintiff fell within "class 2" in relation to social and recreational activities is exposed.
The reasons of the decision maker should also not be examined with an eye keenly attuned to the perception of error: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 at [67] per Preston CJ citing Wu Shan Liang at 291.
Finally, the basis on which the Appeal Panel is said to have "failed to exercise statutory jurisdiction" is, respectfully, not clearly identified in the plaintiff's submissions. The employer expects that the plaintiff may be relying on a claimed constructive failure to exercise jurisdiction on the basis of a failure to consider some essential matter (see Finnegan, [85]; and Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088, [2003] HCA 26, [24]).

[28]

The plaintiff's submissions

The member lists the specific errors that are alleged by the claimant regarding the medical assessment conducted, these include an error in assessment of two of the PIRS categories as well as a failure to make allowance for the effects of treatment in respect of social functioning, social and recreational activities and work.
The Member outlines the requirements that the Medical Review Panel must adhere to, including the fact that they are not permitted to "disturb the ratings of a PIRS scale" on the grounds of a difference of opinion instead an actual error must be established.
The Member then outlines some of the evidence that the Medical Assessor considered when coming to his conclusions, these included, amongst others, the claimant's activities of daily living, the claimants symptoms, the claimant's present treatment and her medical history.
On the role of the Medical Assessor in evaluating the PIRS categories, the Appeal Panel stated at [20] of its decision: "The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error."
The plaintiff also made submissions to the Appeal Panel for the PIRS Category of Social Functioning. Those submissions were also not properly dealt with by the Appeal Panel.
The plaintiff's solicitor contended that by applying the correct criteria the PIRS assessment for social functioning ought to have been assessed as "moderate" class 3 under the Guidelines [305].
Crucially, the plaintiff's solicitor submitted at [306] as follows "Importantly however, she is as a result of her injury, now totally estranged from her twin brother, to whom she was previously very close (p4). The MAC records that he has "coped poorly with her mental illness". In early 2022, the worker told Dr Andrews "he blew up at me and abused me, calling me a drama queen" (p4)."
The plaintiff's solicitor went on to submit at [306] "It is submitted that the worker's reduced social functioning, including total estrangement now from her twin brother, is more than a mere "minor" impairment under the Guidelines. The worker's previously established relationships are severely strained - she is totally estranged from her twin brother and has lost friendships. Applying the correct criteria, this qualifies as "moderate impairment" (class 3) under the Guidelines."
Dr Andrews most definitely had a history that since the injury the plaintiff has become estranged from her twin brother [288], [291] and [294]. He even referred to that crucial history in the reasoning in his PIRS rating.
Obviously, estrangement from a sibling is a very significant matter. However, estrangement from a twin sibling is an even more important consideration. The plaintiff's solicitor's complaint was that this crucial fact combined with the worker's other reduced functioning pointed to Dr Andrews having applied incorrect criteria when it came to his rating of Social Functioning.
The Appeal Panel did not properly deal with this core submission by the plaintiff's solicitor. It needed to carefully consider whether Dr Andrews had indeed applied incorrect criteria, consider the plaintiff's submission to it in that regard and accept or reject that submission with cogent reasoning which squarely dealt with the core complaint rather than skirting around it.
Failure to deal with an argument seriously advanced by Counsel (or in this case the plaintiff's solicitor) can give rise to an error of law. In this case the error is made out.
This legal error here can also be characterised as a failure to provide proper reasons but more fundamentally as a failure to exercise statutory jurisdiction.
Accordingly, legal error is established and for this reason alone the Appeal Panel's decision should be quashed.

At a glance

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Judgment (43 paragraphs)

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Cases Cited (29)

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