Rose v Insurance Australia Limited trading as NRMA Insurance

Issues

1. There was no issue that the Panel had incorrectly referred to the concept of "employability" when undertaking its PIRS assessment, rather than the concept of "adaptability", which is used in the Guideline it had to comply with. As well as in the form there provided, which the Panel was required to use when undertaking its assessment of Mr Rose's impairment: [181] of Review Panel's judgment.
2. In issue was whether this or any of the Panel's other alleged failures established error of the kind which would permit the Panel's assessment to be set aside, as Mr Rose seeks. There was no issue that if such errors were established, the Court could make orders setting aside the Panel's decision.
3. There was also no issue about the principles which must be applied on an application such as this. They include that: 1. The determination of a dispute about the degree of a claimant's personal impairment involves a quintessentially factual issue resolved by a Panel forming its own opinion about the medical question referred to it, by applying its own medical experience and expertise: Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [40] referring to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]; 2. A Panel must afford an applicant procedural fairness, that involving practical justice and avoiding practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] discussed in Frost v Kourouche [2014] NSWCA 39 at [41]; 3. The content of the obligation to accord procedural fairness extends to confronting an applicant with inconsistencies and providing him or her with an opportunity to respond: Kioa v West (1985) 159 CLR 550 at 587. Cl 1.41 of the Guidelines now also requiring an injured person to have an opportunity to confirm the history and/or respond to a medical assessor's inconsistent observations. 4. That obligation also requires the person's attention to be drawn to the critical issue or factor on which the administrative decision is likely to turn, so that he or she may have an opportunity of dealing with it: Kioa at 587 and Frost at [32]. 5. The Panel must also advise of any adverse conclusion which would not obviously be open on the known material, but it is not otherwise required to expose its thought processes or provisional views for comment, before making its decision: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] dealt with in Frost at [37]-[38]; 6. The Panel does not have to consider every piece of evidence: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [22]. Nor does it have to provide a running commentary of its thought processes or of the effect of particular answers given by the claimant in the course of its examination and questioning of him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] and Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] discussed in AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [61]; 7. Nor does a Panel have to put to a claimant various versions given about symptoms over time, with a view to ascertaining which version was the correct, or most accurate one: Amos at [67]; 8. It is for the Panel to identify material which is unreliable, but it may still give such material limited weight: Ali v AAI Limited [2016] NSWCA 110 at [69]; 9. Section 61(9) requires a Panel to give reasons for its findings. That requires an explanation of the actual path of its reasoning, in sufficient detail to enable the Court to see whether or not the opinion involved an error of law: Wingfoot at [55]; 10. But such reasons are not to be construed minutely and with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 discussed in Bojko v Icm Property Service Pty Ltd & Ors [2009] NSWCA 175 at [36]; 11. To fulfil the minimum legal standard reasons need not be extensive, but where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another: Campbelltown City Counsel v Vegan (2006) NSWLR 372; [2006] NSWCA 284 at [121]-[122]; 12. Giving a Panel's reasons the required "beneficial construction" does not require any ambiguity in the reasons to be resolved in its favour. That also does not require the assumption that a vital issue was addressed when there is no evidence of this and the general thrust of the reasons given suggest that the issue was overlooked: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 6 discussed in Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 at [47]; 13. That approach also does not permit filling in gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law: Sadsad also at [47]; 14. A Panel merely making a wrong finding of fact is not an error of law: AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [71]; and 15. But a Panel's failure to comply with applicable Guidelines can constitute a failure to exercise jurisdiction: Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22.
4. What was in issue was whether the matters raised by the grounds of appeal pressed had been established. They being: GROUND 1 1. The Second Defendant: 1.1 failed to assess the Plaintiff based on the Plaintiff's presentation on the day of the assessment and in accordance clauses 1.18, 1.21, 1.201-1.212, 1.216-1.217 of the Motor Accident Permanent Impairment Guidelines, Version 1 ("the Guidelines"); 1.2 instead, gave primacy to the assessment by Dr Jennifer Batchelor, dated 13 May 2022 ("Dr Batchelor's report"). By doing so, the Second Defendant failed to discharge its statutory function pursuant to s. 63 of the Act by not assessing the matters afresh. GROUND 2 2. The Second Defendant failed to comply with clauses 1.40 and 1.41 of the Guidelines by: 2.1 failing to adequately or at all draw the Plaintiff's attention to, and therefore failed to afford the Plaintiff an opportunity to respond to what the Pannel categorised as inconsistencies between the Plaintiff's presentation and Dr Batchelor's report; 2.2 mischaracterised Dr Batchelor's penultimate opinion and her findings, and made adverse credit findings to the Plaintiff, which affected the Second Defendant's assessment of whole person impairment; 2.3 failed to have due regard to the contemporaneous and other evidence that buttressed the Plaintiff's presentation and history. This was a constructive failure to exercise jurisdiction and a denial of procedural fairness. GROUND 3 3. The Second Defendant was required to provide reasons pursuant to s. 61(9) of the Act. The Second Defendant failed to expose its path of reasoning, or to provide adequate reasons for its assessment of the Psychiatric Impairment Rating Scale ("PIRS") from clauses 1.219-1.221 and Tables 11 - 16 of the Guidelines when assessing the Plaintiff in respect of: 3.1 self-care and personal hygiene; 3.2 social and recreational activities; 3.3 travel and social functioning; 3.4 concentration persistence and pace. These are errors of law on the face of the record. GROUND 4 4 The Second Defendant misinformed itself as to the PIRS assessment categories and assessed the Plaintiff improperly in respect of "Employability", when that category does not form part of the PIRS assessment under the Guidelines. This is a jurisdictional error. … 6. By reason of these errors, the review panel decision is invalid, and it should be set aside.

Did the Panel fail to comply with the applicable guidelines?

1. In order to resolve what is in issue about the Panel's compliance with the Guidelines and other issues, its reasons must be understood.

The Panel's reasons

1. In its detailed, thirty-page certificate, which reflected the complexity of the assessment it had to undertake, the Panel noted the background to its review of Mr Rose's assessment and the legislative framework under which it was conducted. Including the applicable provisions of the Guidelines, which refer to the AMA 4 Guides which are to be used as a background only to the PIRS scale: at [9]-[16].
2. The Panel then turned to the assessment under review, noting what Assessor Shen had to assess when he examined Mr Rose in April 2023: at [19]. It outlined the history which Mr Rose had given, that including that he was working at the time of the accident but had not done so for 2 years because work was not available and he had tried to retrain without success. His other consistent post-accident history including: 1. His mood worsening over the past three years, but he not having tried antidepressants; 2. Symptoms including brain fog, poor concentration, weight gain, poor sleep, lack of motivation and energy, feelings of anxiety, frequent intrusive memories of the collision and dreams about the accident, as well as triggers which resulted in him remaining hypervigilant when in cars; 3. Having received some psychiatric therapy and wanting more, but not being able to afford it; 4. His various activities, which had not included driving for over 1- 2 years because of anxiety, which the Medical Assessors had challenged; 5. The consistency of his neuropsychological testing, which suggested that he was more impaired now. But Assessor Shen considering that Mr Rose was minimising his pre-accident condition as well as exaggerating symptoms of his PTSD; and 6. That despite this, Mr Rose's PTSD was static and he needed treatment.
3. The Panel noted that the Assessor's conclusion had been that Mr Rose had 15% whole person impairment to which any pre-existing anxiety which he may have had, had not contributed: at [29].
4. Under the heading "Issues for Determination" the Panel then explained the parties' respective submissions. The insurer contending that the assessment of Mr Rose's impairment had been incorrect and that the reasons given by the Assessor were insufficient. Mr Rose disputed this. The Panel noted at [41] that the issues in dispute identified in the submissions included: "(a) causation due to what the insurer says is an absence of recorded complaints of psychological symptoms for a year after the accident; (b) apportionment of WPI due to what the insurer submits is a pre-existing symptomatic psychological disorder before the accident, and (c) the class of impairment for each of the six criteria in the PIRS."
5. After referring to procedural matters the Panel turned to its review of the evidence, including the claim form, police report, ambulance and hospital records, treating records and reports: at [43]-[84]. It then dealt with the medico-legal reports, which referred to reports of Mr Rose's worsening anxiety and depression and him performing sub optimally on testing by Associate Professor Batchelor: at [85]-[121].
6. The Panel next explained its findings on re-examination, beginning with the history Mr Rose then gave, including his work history, psychiatric history before the accident, his medical history, other relevant history and family history: at [122]-[138]. This including: 1. He was then aged 25 and had been receiving a disability support pension for 7 months, based on "the combined diagnosis of a post-traumatic stress disorder and depression, together with a variety of physical complaints": at [122]; 2. His explanation for not being able to work as an excavator, which was too physically challenging and involved a commute which he could not cope with, becoming overwhelmed when driving, feeling anxious, developing a tension headache and panicking. But that he had retained his licence; 3. Despite having attained a Certificate III in civil construction and plant operations, he had never had a permanent full-time job. Even before the accident he had suffered from significant anxiety and motivational problems, and he had been unemployed for about a year; 4. He had had some limited history of seeing a GP and psychologist, but that had made him feel worse. He believed that a job would improve his mental health; 5. He had lost a job at a sawmill after a knee injury, after which he had suffered further injury in a motor bike accident, after which his mental health had deteriorated. After his motor vehicle accident he had also suffered a back injury while working on a highway when he slipped and fell, for which received workers compensation; and 6. He was then under the care of only his GP, having last received psychological treatment over a year before. He no longer took medication for his nightmares because of intolerable side effects and was scared of taking antidepressants, to which he did not respond well.
7. The Panel then turned to Mr Rose's current symptoms and functioning: at [142]-[155]. Including: 1. Mr Rose's description of his ongoing, worsening to now almost nightly, nightmares which had started after the accident; experiencing random memories of the accident including recently, smashing sounds; and his struggles with sleep, managing only 4-5 hours per night; 2. His explanation of his suicidal ideation and self-harm, as well as ongoing depression; and 3. Mr Rose's explanation of his problems with finding work, to which transport was a huge factor, as well as his limited daily activities, weight gain and lack of enjoyment.
8. The Panel next referred to the history Mr Rose gave of the accident, the medical attention he sought afterwards and his post-accident functioning: at [156]-[161]. There it outlined his explanation of his memories of the accident and treatment he had later pursued, which did not stop his pain experience, but not complaining about his mental health until around 12 months after the accident. He also said he had started full time fencing after the accident but stopped due to his physical complaints in relation to his shoulder and neck and while he preferred not to drive, he then did according to work requirements. He next did full time labouring work before attempting an apprenticeship which only lasted two days because of a combination of the long drive and grinding hurting his shoulders.
9. The Panel observed that Mr Rose's mental functioning did not cause significant disability for the first few years and his response to this, that constant pain had chipped away at him and that surgery to remove scar tissue at the level of C3/C4 did not stop that experience.
10. The Panel next explained the results of Mr Rose's mental state examination: at [162]-[167]: "162. Mr Rose presented as a man of stated years who had a full beard and frontal balding. His level of self-care and grooming appeared to be normal. His psychomotor functioning was normal. He was engaged and attentive throughout the interview process. At no stage was he observed to be distressed or disordered. 163. His speech was normal in form. The content of his speech emphasised his disability. His self reported symptoms appeared to be excessive when compared with the mental state observations. His narrative was heavily focused on disability, with self-reported functioning and language closely aligned with the explanatory guide to the use of the PIRS scale. 164. His narrative indicated a sharp decline in psychological functioning in 2020 which he agreed was at a time after his motorbike accident and which also coincides with him being certified by Ms Collins as fit to return to work. At interview, he stressed themes of helplessness and hopelessness. 165. His affect was bright and reactive. He did not look depressed, anxious or disordered at any stage. His affect was inconsistent with his narrative. 166. His cognitive functioning was normal at a clinical level. 167. There was no evidence of psychosis."
11. The Panel then turned to the question of whether Mr Rose's evidence was reliable: at [168]-[170]. After referring to Associate Professor Batchelor's conclusion about Mr Rose's testing that "the data provided unequivocal evidence of a deliberate attempt to exaggerate impairment", the Panel said that in its clinical judgment at the re-examination Mr Rose was "attempting to minimise his pre-accident condition and maximise his post-accident state": at [169].
12. It concluded that his evidence had to be approached with caution and so it had to "look for confirmation in the medical records or elsewhere": at [170]. I note that given the Panel's later explanation for the conclusions it arrived at about the PIRS scale, which it had to apply in calculating Mr Rose's whole person impairment, that it is not apparent from the reasons which it gave, that it actually looked for such confirmation.
13. The Panel then turned to causation of injuries, noting the two questions which the Guidelines required be answered: "171. The test of causation of injury formulated in cls 1.5 - 1.7 of the Guidelines requires the Panel to answer two questions: (a) could the motor accident have caused or contributed to the occurrence or worsening of a psychological or psychiatric disorder? (b) did the motor accident in fact cause or contribute to the occurrence of worsening of a psychological or psychiatric disorder?"
14. It was the clinical judgment of the Medical Members of the Panel that Mr Rose could have sustained a psychological or psychiatric injury as the result of the accident and the conclusion of the Panel, that he did sustain a psychiatric disorder as a result: at [173]-[177].
15. The Panel then explained its diagnosis of Mr Rose's current condition. Concluding that he satisfied the diagnostic criteria for PTSD and adjustment disorder in accordance with DSM 5: at [178]-[179]. The Panel noted that Mr Rose had not trialled medication. But it considered that his impairment was permanent and unlikely to change in the near future: at [180].
16. By a table, the findings of the Medical Members, after their clinical examination of Mr Rose, in respect of the various PIRS categories the Panel had to consider were provided at [181]. Incorrectly, this table referred to "employability", which is not a category provided by the Guidelines, but it was adopted by the Panel. The Panel then explained how it arrived at its resulting conclusion, that Mr Rose's whole person impairment was 5%: at [182]- [183].
17. Given that finding, the Panel then explained why it had made no adjustments for conclusions it had arrived at in relation to Mr Rose's pre-existing impairment, or for subsequent injuries he had suffered: at [184]-[190]. Its final conclusion being that his whole person impairment was less than 10%, it revoked Assessor Shen's certificate.

The Panel did not comply with the applicable Guidelines

1. I am satisfied that the Panel's reasons establish that it failed to comply with the applicable Guidelines.
2. The records and reports which the Panel had to consider showed that Mr Rose had not given those who had treated and examined him after the accident, a consistent account of his history and the consequences of the accident. But repeated reference was made in them to Mr Rose complaining about various ongoing, adverse impacts of the accident, including on his memory, ability to concentrate, nightmares and problems with driving or being in a vehicle, albeit he had maintained his license. They established that he had first sought medical attention for these problems about a year after the accident.
3. There was no issue that the inconsistencies in Mr Rose's reporting had to be considered by the Panel in its assessment of the whole person impairment caused by the psychological injury it was agreed he had suffered as the result of the accident. Nor that it was entitled to consider the conclusions Associate Professor Batchelor came to when she tested his cognitive impairment in 2022.
4. But the Panel had to approach its consideration of all that fell to it to decide, in accordance with the requirements of the Guidelines. This it failed to do.
5. What the Guidelines required the Panel to do in its assessment included that: 1. Inconsistencies between its clinical findings and information obtained through medical records and/or observations of non-clinical activities be brought to Mr Rose's attention and he be given an opportunity to respond, to ensure accuracy and procedural fairness: cl 1.41; 2. His impairment be assessed using the PIRS scale, which required the Panel to assess four aspects of Mr Rose's functioning: activities of daily living, social functioning, concentration, persistence and pace and adaptation, according to five classes which ranged from no impairment to extreme impairment in each case: cls 1.205 and 1.211; 3. Adaptation "(also called deterioration or de-compensation in work or work like settings)" was concerned with "repeated failure to adapt to stressful circumstances.": cl 1.210. Accordingly, this required the Panel to consider more than Mr Rose's work history, given all the consequences of the accident which he reported over time; 4. The Panel also had to have regard to the class descriptors provided for each category of functioning, having obtained a history of Mr Rose's precedent lifestyle, activities and habits and assessing the extent to which they had changed as the result of his psychiatric injury. Account also had to be taken of the "variations in his lifestyle due to age, gender, cultural, economic, educational and other factors": cl 1.220; 5. In the case of adaptation, if it could not "be assessed by reference to work or a work-like setting", consideration had to be given to Mr Rose's usual pre-injury roles and functions such as caring for others, housekeeping, managing personal/family finances, voluntary work, education/study or the discharge of other obligations and responsibilities.": cl 1.221. 6. This was relevant in Mr Rose's case given that he was not working at the time of his further examination, had not done so for some years and earlier had been in and out of employment, as well as having unsuccessfully attempted study and an apprenticeship after the accident; 7. The Panel was required to use the impairment assessment form provided in the Guidelines when it scored Mr Rose's PIRS categories: cl 1.220. That form requiring the class the Panel assigned to each category to be indicated, as well as the reasons for the class it assigned to be given. They had to explain the Panel's actual path of reasoning to its conclusion, those class allocations determining the resulting calculation of Mr Rose's whole person impairment; 8. The assessment of these categories were concerned with change which had resulted from Mr Rose's injury in the accident, the Guidelines also specifying how pre-existing impairment and subsequent injuries had to be dealt with in the calculation of whole person impairment resulting from the accident: cls 1.31 - 1.34.
6. There is no issue that the Panel failed to use the required form and did not refer to Mr Rose's adaptation, that concept as defined, not being concerned with "employability". It also appears not to have undertaken its consideration of change resulting from the injury he suffered in the accident, in relation to some categories, by a comparison between his situation before the accident, to that at the time the Medical Members examined him.
7. As the result of the approach which the Panel took and the conclusions it arrived at as a result, it also concluded that it was not necessary to consider either Mr Rose's pre-existing impairment or the subsequent injuries he had suffered, because it found that his whole person impairment as the result of his psychological injury was less than 10%: at [188] and [189].

The Panel's assessment of Mr Rose's employability rather than his adaptation

1. Despite the case the insurer advanced I am satisfied that there can be no question that the Panel erred in assessing Mr Rose's employability, in arriving at its conclusions about his whole person impairment. That not being a concept used in the Guidelines and the concept of adaptation which is there used, to which the Panel did not refer, not being concerned with his employability.
2. It is not possible to explain how the Panel came to make this error.
3. What it had to consider was Mr Rose's adaptation, in accordance with the Guidelines which regulated its assessment. The rating scale for adaptation is provided in Table 16 of the Guidelines: Adaptation Class 1 No deficit, or minor deficit attributable to normal variation in the general population. Able to work full time. Duties and performance are consistent with injured person's education and training. The injured person is able to cope with the normal demands of the job. Class 2 Mild impairment. Able to work full time in a different environment. The duties require comparable skill and intellect. Can work in the same position, but no more than 20 hours per week; for example, no longer happy to work with specific persons, work in a specific location due to travel required. Class 3 Moderate impairment. Cannot work at all in same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different; for example, less stressful. Class 4 Severe impairment. Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. Class 5 Totally impaired. Cannot work at all.

1. It was submitted by the insurer that the Panel's reference to employability merely reflected the inadvertent use of the form which applies under the Worker's Compensation system, which is concerned with its assessment, and could not establish that it had failed to assess Mr Rose's adaptation. This was argued to be supported by the Panel's reference, elsewhere in its reasons, to other of the applicable Guidelines it had to apply.
2. But it may not be overlooked that in its reasons the Panel did not refer to the category of adaption which those Guidelines required it to assess. Nor to the Guidelines which regulated its assessment. Nor did it use the required form which referred to adaptation. There was thus simply no ambiguity in the Panel's assessment of Mr Rose's employability, which could be resolved in its favour.
3. It follows that to adopt the approach the insurer urged would be contrary to settled principle.
4. The approach urged requires the assumption that the Panel did assess Mr Rose's adaptation, despite its failure to refer to that category or the Guidelines which regulated its assessment. But there is no evidence to support that assumption, apart from the Panel's reference to other of the Guidelines it had to apply, which did not deal with adaption.
5. The assessment of Mr Rose's adaptation was a vital issue in the assessment of his whole person impairment, as the form which it had to use reflected.
6. The general thrust of the reasons which the Panel gave for the conclusions which it reached about employability, suggest that contrary to the view the insurer urged, it overlooked the requirement to assess adaptation and what it was concerned with and instead concentrated its attention on Mr Rose's employment situation.
7. To support the conclusion that the Panel had failed to consider all that the adaptation category encompassed, a contrast was drawn with the approach of Assessor Shen. He having assessed Mr Rose's adaptation, which he concluded fell into class 4, severe impairment. His conclusions were argued by Mr Rose to reflect compliance with the Guidelines, to which the Panel had failed to have regard, they not being concerned only with his changing employment. The reasons Assessor Shen gave for his conclusions having been:

• "At the time of the subject accident, he was working in labouring, and he said after the subject accident, he was not able to remember what happened but he lost the job.
• He has not worked since 2 years ago, when he was working as an excavator operator. He had been doing that for 4-6 months. He said that he was let go as the employer said they had no work. He said he had some work performance issues, including that when he was in the machine he would zone out and so his machine would move and cause damage to property. He would also struggle and forget to complete complex tasks.
• Since then, he has not returned to work. He had applied for a job, but the reference was not good. He had tried to start a course in Marine Science a year ago through the Southern Cross University which was held remotely. He said that he did not make the first lesson, as he would be sitting there listening to the teacher, but he would not comprehend what was being said. He then said he became frustrated, so he decided to get some help before he re-started his studies again, so he has deferred his studies.
• He had tried to do an apprenticeship in welding a few years ago as well, but he found it too difficult on his shoulders and he was not able to get a lift to work.
• He had been able to work when he was previously assessed, but likely since the progression of his worsening depressive symptoms, this may have aggravated his capacity for stress tolerance and adaptation to work stress. His baseline capacity is a labouring or machine operator role, but he has not been able to sustain those roles; he has also not been able to sustain studies nor an apprenticeship, though this was limited in part by his impaired capacity to travel as well.
• I am inclined towards severe impairment, as he had been able to last at least 4-6 months in his role as a machine operator, and so he was able to work, though his performance was erratic and impaired."

1. These reasons reflect that Mr Rose's history included:

• At the time of the assessment not having worked for some 2 years;
• Before the accident he had left school in year 8, having suffered bullying and problems with anxiety and nightmares; completed years 9 and 10, as well as a Certificate III in construction at Tafe, while he was also working; had later obtained labouring work; but did not work immediately before or after the accident; and
• Afterwards he had unsuccessfully attempted further study and an apprenticeship and had also obtained, but not kept, various employment in the country where he lived, before and after he was injured in other later accidents, but he reported ongoing problems with driving affecting his ability to work.

1. In the history he gave Mr Rose had ascribed various reasons for his post-accident problems, including his ongoing physical and psychological problems, including with driving, as well as the further physical injuries he had suffered in his two later accidents.
2. The applicable guidelines contemplate that a claimant's injuries may improve, deteriorate or stabilise and that psychological injury must be assessed separately from physical injury, at the time of the assessment. The assessment of adaptation is thus concerned with a consideration of change.
3. In the table the Panel used, the reasons it provided for concluding that Mr Rose fell into class 2 for employability, were so short that they shed no real light on the reasons for its conclusion. They being confined to: "The claimant was not working at the time of the subject accident, had a history of inconsistent work predating the subject accident and was able to obtain employment and work following the subject accident without psychological restrictions until his physical symptoms or other accidents and events intervened. His currently reported work capacity was evaluated against his post-accident functioning and the documented exaggeration on testing by Dr Batchelor."
4. The Panel also referred, later in its reasons, to Mr Rose functioning well up until mid-2020 when Dr Parsonage assessed his whole person impairment to be 5%, consistent with the occupational therapist report at that time: at [189]. But it did not there refer to the deterioration Dr Parsonage later found in 2023, or what other records documented.
5. The Panel having made no reference in the short reasons which it gave for its assessment of Mr Rose's employability, to the concept of adaptation and what it was concerned with or the specified criteria by which it had to be measured, nor what Mr Rose reported his relevant circumstances to be, apart from his work, all of which the Panel had to consider, it seems to me that it must be accepted that the Panel cannot have considered adaptation in the way the Guidelines required it to.
6. That is, by reference to Mr Rose's deterioration or de-compensation in work or work like settings and his repeated failure to adapt to stressful circumstances, while also having regard to his history of precedent lifestyle, activities and habits, assessing the extent to which they had changed as the result of his psychiatric injury and taking into account variations in his lifestyle due to age, gender, cultural, economic, educational and other factors.
7. This required the problems Mr Rose developed after the accident in young adulthood with driving and study to be considered together with his work history, as Assessor Shen did.
8. The specified criteria for a mild impairment in the case of adaptation relevantly also required the Panel to consider:

• Whether, at the time of the assessment, Mr Rose either had an ability to work full time in a different environment with duties requiring comparable skill and intellect after injury, to those he was performing before; or
• Being able to work in the same position, but not more than 20 hours per week; or
• Not being able to work in a specific location due to travel required.

1. These are given as examples which are intended to be illustrative, the class descriptions using common examples: cl 1.220. Their application depending on the history obtained from Mr Rose about his pre-accident lifestyle, activities and habits and the assessment of the extent to which they had changed as the result of his psychiatric injury.
2. On the reasons which the Panel gave, having earlier concluded that he was an unsophisticated young man who had not become conscious of his psychological injury until about a year after his accident, it found that on his further examination Mr Rose was attempting to minimise his pre-accident condition and maximise his post-accident state.
3. Still the Panel concluded that his history of not having raised psychological difficulties until the year after the accident was medically plausible. Psychological symptoms often being slow to emerge, sometimes difficult to associate with disorder, particularly in light of Mr Rose's precedent experiences and the progress of his physical injuries, which had not recovered over time: at [179].
4. Despite those conclusions and the documented history of Mr Rose's psychological injury being consistent with ongoing deterioration as he failed to recover from his physical injuries and the Panel referring to Mr Rose still not working at the time of the assessment and having failed in the studies and apprenticeship he attempted, it did not refer to those failures, or the impact of his documented ongoing problems after the accident with driving or being in a vehicle, when it assessed his employability.
5. Their impact on his ability to obtain and retain employment, living in the country as he did, does not appear to have been considered, as it needed to be if the Panel was assessing his adaptation, that also being concerned with repeated failure to adapt to stressful circumstances.
6. While the parties disputed the proper construction of cls 1.210 and 1.221 of the Guidelines, their application was for the Panel to consider. But it made no reference to them or the considerations they dealt with, which it also had to comply with. That it did, is not apparent on the reasons which it gave and cannot simply be assumed.
7. The Panel's repeated reference in the reasons which it gave for the conclusions which it reached in relation to the PIRS categories, to the results of Associate Professor Batchelor's testing, even though that was not concerned with Mr Rose's psychological injury, but impairment caused by his brain injury, also has to be considered in this light.
8. There was no issue that the results of this testing were relevant. The Panel's explanation of its findings on examination indicated that it was concerned about Mr Rose exaggerating and so proposed to have regard to other relevant records in arriving at its conclusions. But that the Panel pursued this course in its consideration is not apparent from the reasons which it gave in relation to its assessment of employability. The reliance which it placed on Associate Professor Batchelor's report alone, from the reasons given, is not consistent with the approach it had indicated that it would take.

Was the obligation to give reasons complied with by the Panel?

1. I am also satisfied that the Panel failed to comply with this obligation, despite the lengthy reasons which it gave.
2. A review panel is entitled to have regard to the assessment under review, as well as the other records and reports available to it, in coming to its conclusions about the history which an applicant gives it and the applicant's impairment. But it must base its new assessment on clinical information current at that time: Boyce at [9].
3. The Guidelines required the Panel to assess Mr Rose's impairment by considering change. It approached the history which Mr Rose gave its Medical Members on his further examination with caution, given the inconsistencies which they identified and the matters they raised with him as a result. Matters which he accepted, as the Panel explained in its reasons. There can be no question that this approach was open to the Medical Members, as a matter of their clinical judgment when conducting their assessment.
4. It may also be accepted that Mr Rose's assessment was complicated, given all that was raised by the records the Panel had to consider and the history which he gave.
5. But even if I were able to accept that the Panel had adhered to the Guidelines in its assessment of Mr Rose's adaptation, I am still satisfied that it cannot be concluded that it complied with the undisputed obligation which fell upon it to explain the actual path of reasoning which led to the conclusions which it reached about the PIRS criteria.
6. Those reasons having to be given in sufficient detail to enable the Court to see whether or not the opinion it arrived at in relation to each criterion and ultimately, Mr Rose's whole person impairment, involved an error of law.
7. I have already quoted the short reasons given in relation to employability. They undoubtedly failed to disclose the Panel's actual path of reasoning to a conclusion about his adaptation and the class it fell into.
8. That is despite the Panel having earlier given an undoubtedly commendably detailed explanation of records it had to consider and what Assessor Shen and the Medical Assessors had found on their examinations of Mr Rose. But when it came to explain the conclusions which it arrived at in relation to the PIRS scale which it had to implement, the reasons it provided to explain its conclusions were so shortly given and shed such little light on its path of reasoning, that it must be concluded that the Panel did not satisfy the obligation which fell upon it.
9. At that point of its reasons the Panel gave so little detail about its path of reasoning that it is not possible to see how its conclusions were arrived at, or that they do not involve an error of law, even reading those reasons beneficially and in light of all that it had otherwise said.
10. This can be further illustrated by the reasons the Panel gave for its conclusion that Mr Rose fell into class 2 of the social and recreational activities category. The rating scale which the Panel had to apply was provided in Table 12 of the Guidelines: Social and recreational activities Class 1 No deficit or minor deficit attributable to normal variation in the general population. Able to go out regularly to cinemas, restaurants or other recreational venues. Belongs to clubs or associations and is actively involved with these. Class 2 Mild impairment. Able to occasionally go out to social events without needing a support person, but does not become actively involved; for example, in dancing, cheering favourite team. Class 3 Moderate impairment. Rarely goes to social events, and mostly when prompted by family or close friend. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn. Class 4 Severe impairment. Never leaves place of residence. Tolerates the company of `family member or close friend, but will go to a different room or the garden when others visit family or flatmate. Class 5 Totally impaired. Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

1. The short reasons the Panel gave were: "Mr Rose said that he enjoyed fishing but had not done that for the six months before we assessed him. He said he has one friend who rings him. They speak on a weekly or fortnightly basis. He said that he has not seen that friend for a long time. The Medical Assessors discussed awarding a class 3 and considered the disclosures made by the claimant concerning his social and recreational activities and his self-reported difficulties. When compared with his documented participation in fishing and trail bike riding after the accident, the assessment by the occupational therapist and the documented exaggeration on testing by Dr Batchelor and consider a class 2 impairment more appropriate."
2. This revealed that the Panel considered that more than one conclusion about the correct class was open in Mr Rose's case, given all that it had to consider. It was thus necessary for the Panel to give some explanation of its preference for one conclusion over the other. But the explanation it gave was so spare that it failed to do so. Its path of reasoning to the conclusion that Mr Rose's impairment was mild rather than moderate, not being discloses as it had to be.
3. What the Panel had to consider was change between Mr Rose's position before the 2017 accident and his position at the time of his further examination by the Medical Members, taking into account his precedent lifestyle, activities and habits and assessing the extent to which they had changed as the result of his psychiatric injury: cl 1.220. The comparison which it made was between his position after the accident and what he had done in the 6 months before his assessment.
4. The Panel necessarily had to consider the history which Mr Rose gave it, together with other records which shed light on that history. It said it would have regard to them because of the views the Medical Members had formed about the reliability of what Mr Rose told them. This explains the caution with which the Panel considered that it had to approach his evidence. But again the only record the Panel referred to in order to explain its conclusions was Associate Professor Batchelor's report.
5. In the case of the social and recreational activities scale, the Panel had to consider Mr Rose's attendance at social events, the criteria being concerned with the frequency of his engagement in such activities and whether he required a support person, in concluding whether Mr Rose fell into class 2 or 3 at the time of its assessment. The essential difference in the criteria turning on occasionally or rarely going to social events.
6. Earlier in its reasons the Panel had referred to documented deterioration which it had considered in arriving at its conclusion that Mr Rose was on examination in 2024 suffering both PTSD and an adjustment disorder, his psychological injuries not having begun to manifest until 2018.
7. In its reasons the Panel referred to Mr Rose's documented activities after the accident in 2017, before his psychological injuries had manifested as well as those he reported to the occupational therapist in 2020 and what he told the Medical Assessors in June 2024, essentially: 2017 "his documented participation in fishing and trail bike riding after the accident"; 2020 "the assessment by the occupational therapist", without disclosing what Mr Rose had then reported to her; 2024 "he enjoyed fishing but had not done that for the six months before we assessed him. He said he has one friend who rings him. They speak on a weekly or fortnightly basis. He said that he has not seen that friend for a long time."
8. The Panel had earlier recorded Mr Rose's explanation for having stopped fishing to be arguments he was having with his girlfriend and difficulties he continued to have with driving, which he hated because he will "space out": at [153]-[154]. The Panel later said that it had concluded it had to approach his evidence with caution and look for conformation in the medical records: at [170].
9. The Panel concluded that Mr Rose's impairment fell into class 2, that turning on the account it took of Mr Rose's documented exaggeration on testing by Associate Professor Batchelor in 2022. But it did not explain what light it considered this report shed on his variously reported attendance at social events, which was consistent with deteriorating participation, to the point he reported in 2024.
10. This aspect of its statutory task necessarily involved the Panel considering records which dealt with Mr Rose's ongoing problems and their impact on his social activities. Implicitly, reading the reasons the Panel gave as a whole, it concluded that on examination in 2024 Mr Rose was under reporting the extent of his social activities.
11. The occupational therapist's report dealt with his position in 2020. It referring to Mr Rose then enjoying fishing, spear fishing, riding his motor bike, snorkelling and bushwalking, but being unable to spear fish and his anxiety and PTSD impacting his capacity to do tasks. That this supported the conclusion that in 2024 he was underreporting his then involvement in social activities is not apparent. That conclusion appears entirely to have rested on Associate Professor Batchelor's report. Why such reliance was placed on it, is unexplained.
12. There were other medical records, including records postdating the occupational therapist's report, which did deal with Mr Rose's engagement in social activities which the Panel did not refer to. It did not have to do so. What it had to do, given the caution with which it considered Mr Rose's evidence had to be approached, was to disclose the path of reasoning which led it to conclude that he satisfied the criteria for class 2, rather than class 3.
13. The Panel's reasons shed no real light on this, not attempting any explanation of why it concluded that he satisfied the criteria for mild, rather than moderate impairment. That also having required it to give consideration to variations in Mr Rose's lifestyle due to his age, gender, cultural, economic, educational and other factors
14. It is not necessary to explain similar problems with other aspects of the reasons the Panel so shortly gave for the conclusions it arrived at about the other aspects of the PIRS scale.
15. Given the role that scale played in the Panel's determination of Mr Rose's whole person impairment, there can be no question of the error into which it fell in failing to give adequate reasons for this critical aspect of its decision. The detail of what it otherwise explained about all that it had to consider, did not address this deficiency.
16. A path of reasoning is not disclosed by a detailed recitation of evidence which has to be taken into account by a Panel in arriving at its conclusions. What was required was an explanation of the use which the Panel makes of the evidence on which the conclusion it arrives at turns. In this case, the conclusions it arrived at in relation to the two classes which it considered to be open on that evidence. This the Panel failed to give in the very short reasons which it provided for its conclusions about this critical aspect of its statutory task.
17. This error also warrants the orders sought being made, despite the care which the Panel obviously took with other aspects of its reasons.

Did the Panel afford Mr Rose the required procedural fairness?

1. I am also satisfied that the Panel did not afford Mr Rose the procedural fairness he was entitled to receive, despite the care which the Medical Members took in raising with him at their examination a number of apparent inconsistences between the account which he gave them and his relevant history.
2. The Panel's reasons explain the caution with which its Medical Members concluded Mr Rose's account had to be approached and the reliance the Panel placed on Associate Professor Batchelor's report, in arriving at its conclusions in relation to the PIRS assessments.
3. That Mr Rose was aware of this report was not in dispute and that it was relevant to the Panel's assessment not in issue. That the Medical Members did not raise with him his performance at Associate Professor Batchelor's testing or the report, is also not in issue.
4. That was despite the crucial role it played in the conclusions which the Medical Members and finally the Panel arrived at, critically, about Mr Rose's whole person impairment. That role having only been disclosed by the reasons which it gave when it issued its certificate.
5. Associate Professor Batchelor's testing was concerned with testing whether cognitive impairment had resulted from the mild brain injury Mr Rose had suffered in the accident.
6. Cl 1.36 of the Guidelines required impairment resulting from his physical injury to be assessed separately from his psychological injury. What Associate Professor Batchelor was testing was cognitive impairment resulting from Mr Rose's mild brain injury. What she observed in her report included:

• Definite evidence that Mr Rose was not working to the best of his ability on testing;
• That his brain injury had not been of sufficient severity to result in permanent cognitive impairment;
• That the full range of tests had not been administered;
• That his test results were not explained by the neurological, physical or psychological injuries he had sustained; and
• That he had deliberately attempted to exaggerate his cognitive impairment, with the result that all his test scores had to be considered potentially invalid.

1. But Associate Professor Batchelor also observed that:

• "it is possible that he suffers memory and other cognitive deficits secondary to psychiatric disorder and/or pain. Whether or not that is the case could only be determined if he was working to the best of his abilities throughout a neuropsychological assessment."; and
• Further, that the relationship between cognitive deficits secondary to psychiatric disorder and/or chronic pain and the accident were "outside my area of expertise and represent matters for psychiatric and specialist medical opinion."

1. This well explains why no reference was made to this report in the parties' submissions on the review.
2. While it was before the Panel, it followed that Associate Professor Batchelor's report had to be used with considerable care on its assessment of Mr Rose's psychological injury, given not only what the Guidelines required, but what she had drawn to attention in her report. That the Panel took this into account is not apparent from its reasons, given the use which they disclose it made of this report.
3. Mr Rose's history included psychological problems before the accident. It having caused him not only serious physical injury which had various ongoing adverse impacts, as well as his mild brain injury, but also his psychological injury, which did not manifest until about a year after the accident and which had worsened over time.
4. Associate Professor Batchelor considered that while Mr Rose had exaggerated his symptoms on her testing in 2022, with the result that his cognitive impairment could not be assessed, his psychological injury may have impacted that testing, something which she was not qualified to assess and needed psychiatric consideration.
5. Despite this being clearly raised in her report, the Panel made no reference to Associate Professor Batchelor's observations. Still, in coming to its conclusions about Mr Rose's PIRS categories, it placed significant weight on her findings that the results of Mr Rose's testing in 2022 were not reliable because of his then exaggeration.
6. It is in that context that the Medical Assessors not raising with Mr Rose the use they and the Panel proposed to make of his testing by Associate Professor Batchelor, has to be considered. That has to be contrasted with how they raised with him various inconsistencies between the history he gave them and the earlier histories he had given and what other medical records established.
7. Whether in not raising Associate Professor Batchelor's testing or report with Mr Rose, so that he could respond to her conclusions about his exaggeration, the Medical Members and ultimately the Panel, denied him procedural fairness must be resolved in light of the Panel having to ensure that the approach it adopted did not result in practical injustice for Mr Rose.
8. This has to be considered in light of:

• The case the insurer had advanced in its written submissions on the review being that Assessor Shen had erred in his assessment of Mr Rose's whole person impairment and the conclusions he had arrived at about the PIRS scale, for detailed reasons which it explained;
• But the insurer's submissions not relying on Associate Professor Batchelor's report, the results of the testing she had conducted of Mr Rose's cognitive impairment, or the conclusions she had reached about Mr Rose exaggerating; and
• The submissions advanced for Mr Rose on the review also not dealing with this aspect of the report.

1. It follows that unless disclosed to Mr Rose by the Medical Members when they examined him, the use the Panel proposed to make of the results of Associate Professor Batchelor's testing and her report were not known to Mr Rose.
2. That they were critical factors both in the Medical Members' clinical assessment of Mr Rose, as well as in the conclusions which the Panel reached about his whole person impairment, given how it approached the assessment of the PIRS scale categories, was only revealed by the Panel's certificate.
3. That approach did not accord with the obligations explained in Kioa at 587. Procedural fairness requiring attention to be drawn to a critical issue or factor on which the Panel's decision was likely to turn, so that Mr Rose had an opportunity to deal with it. That makes Mr Rose's case unlike that which arose to be considered in Frost, on which the insurer relied to resist his complaint about procedural unfairness.
4. When there is an issue about the extent of a person's impairment it is, of course, always possible that the members of the Panel who examine the claimant will disbelieve the history he or she gives. That being a matter for their clinical judgment.
5. But here the insurer had not urged the Panel to take Associate Professor Batchelor's report into account in arriving at its conclusions about whether to believe him. Properly, given not only what she was testing, the results of a physical brain injury and what the Guidelines provided in respect of physical and psychological injury being assessed separately. But also given what she had said about the need for psychiatric consideration of the impact of Mr Rose's psychological injury on that testing, which she was not qualified to undertake.
6. That the Panel had to consider whether or not to believe Mr Rose would undoubtedly have been apparent to him, given the case which the insurer had advanced by its written submissions about Assessor Shen's conclusions. The Assessor having earlier dealt with inconsistencies which he had found in the history Mr Rose had given him. Still, the Medical Members raised inconsistencies they found with him at their examination as the Guidelines required.
7. But that the Medical Members and the Panel would rely on Associate Professor Batchelor's testing, to determine whether he was exaggerating at the examination, could not have been apparent to Mr Rose when he was examined. That not having been the insurer's case and not having been disclosed to him by the Medical Members. But as it transpired the report became critical to the decisions which they and the Panel made. This could not have been known by Mr Rose.
8. The insurer having relied on the report to submit that his mild traumatic brain injury had not been severe enough to result in cognitive impairment explains why he did not deal with it in the history which he gave the Medical Members, to explain that he was not exaggerating.
9. If the insurer had relied on the report in submissions to establish exaggeration, Mr Rose could have responded in submissions and dealt with that aspect of his history at the examination. Given what the report said, attention would also necessarily have been drawn to Associate Professor Batchelor's reservations and the need for a psychiatrist to consider the impact of Mr Rose's psychological injury. That would then no doubt have been considered by the Panel. But because the use it proposed to make to the report was not disclosed to him, that did not occur.

Is the threshold of materiality met?

1. The conclusion that this threshold is met is unavoidable, it seems to me, given the use which the Panel made of Associate Professor Batchelor's reporting in arriving at its conclusions about the PIRS scale and ultimately, Mr Rose's whole person impairment.
2. The Panel concluded that inconsistencies in Mr Rose's evidence required it to approach his evidence with caution, by having regard to what contemporaneous records showed.
3. In the Panel's review of the evidence it referred to documented ongoing complaints about worsening psychological problems from August 2018 and Mr Rose having received limited treatment despite desiring to pursue it, because he could not afford it. It also referred to: 1. Mr Rose initially not pursuing treatment for the psychological impacts of the accident, but pursuing treatment for his physical injuries; 2. It being in August 2018 that Mr Rose reported fatigue, forgetfulness, poor concentration and feeling tired and sleepy to his GP. In January 2019 reporting ongoing nightmares, poor motivation, low mood and anxiety whenever a passenger in a vehicle and having pursued, but having had to abandon, employment which he was unable to continue; 3. Mr Rose receiving counselling and in April 2019 still suffering ongoing nightmares, anxiety while a passenger, low mood and motivation and being diagnosed to be suffering PTSD and anxiety, which worsened; 4. Being referred for psychological review with ongoing anxiety and nightmares and in December 2019 injuring his back at work and in January 2020 his shoulder pain being described as chronic; 5. Injuring his knee in a motor bike accident in February 2020 and in May reporting ongoing poor memory, concentration and mood swings. In September, during a neuropsychological assessment, reporting depression, PTSD symptoms and panic attacks; a mild traumatic brain injury being diagnosed and it being found likely that psychological factors had continued to confound his cognitive functions; 6. An occupational therapist's report in 2020 dealing with his physical and mental functioning, with his physical injuries having impacted his ability to obtain work and there being high unemployment where he lived, but while he had had a reasonable physical recovery, a March 2020 medical report suggesting that his psychological injury was having a large effect on his capacity to function; 7. In May 2020 Dr Parsonage considering Mr Rose's worsening anxiety and possible PTSD from the accident, as well as a general deterioration in his mental health, a specific phobia of driving and an adjustment disorder with depressed mood. He diagnosed PTSD, a phobia of driving and adjustment disorder with depressed mood, with his resulting whole person impairment assessed to be 5%; 8. On neurological testing in September 2020, it being concluded that psychological factors were affecting Mr Rose's cognitive function; 9. Mr Rose pursuing treatment for anxiety, panic attacks and PTSD in 2021; 10. In August 2021 Mr Rose reporting depression, reduced motivation, blank outs and anxiety while driving, weekly nightmares and his memory being affected to Dr Vickery, who assessed his whole person impairment assessed to be 1%; 11. In September 2021 a clinical neuropsychologist referring to his mood and psychological state affecting his cognitive testing, when he did not make satisfactory effort; 12. In March 2022 Dr Parsons concluding after he had had surgery to his neck that his reported worsening anxiety and depression were likely related to his cognitive difficulties. He then assessed Mr Rose's whole person impairment assessed to be 17%; 13. It being when his brain injury was assessed in May 2022 that Associate Professor Batchelor formed adverse opinions about his performance on testing; and 14. Assessor Shen considering Mr Rose's history of suboptimal performance in 2023, as well as inconsistencies he identified, but concluding that he did suffer PTSD and depression secondary to pain, with his whole person impairment assessed to be 15%.
4. The Panel did not mischaracterise Associate Professor Batchelor's assessment of Mr Rose as unreliable on testing. But that it failed to undertake the further consideration which she had identified required psychiatric consideration which she was not qualified to undertake, may not be overlooked.
5. This testing was concerned with the results of the mild brain injury Mr Rose had suffered in the accident and any resulting cognitive impairment, not his psychological injury. It was concluded that the brain injury was not of sufficient severity to have resulted in any permanent cognitive impairment.
6. In coming to its conclusions about Mr Rose's psychological injury the Panel took into account, as it was entitled to, what Associate Professor Batchelor had concluded. But it denied him procedural fairness in doing so, as I have explained. That it might have come to a different view had Mr Rose been given an opportunity to deal with the report cannot be discounted, given all that I have explained, particularly as to Associate Professor Batchelor's reservations. I am thus satisfied that the Panel's errors did meet the threshold of materiality.
7. I note that it was also argued that the question of materiality was raised by the Panel's incorrect use of the term "employability" in its assessment. For reasons earlier explained, there being in my view a real possibility that the Panel could have arrived at a different conclusion had it assessed Mr Rose's adaptation in accordance with the applicable Guidelines, the suggestion that this aspect of its decision involved material error must also be accepted.

Costs

1. The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event. In this case that is an order that the insurer bear Mr Rose's costs.
2. Unless the parties approach to be heard within 14 days with short written submissions, that will be the Court's order.

Orders

1. For the reasons given I order that: 1. The Panel's certificate be set aside. 2. The matter be remitted to the President of the Personal Injury Commission to be dealt with according to law. 3. Unless the parties approach to be heard within 14 days with short written submissions, the insurer is to bear Mr Rose's costs, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2025