Tasevski v Westpac Banking Corporation

Conclusion

1. For the reasons which follow I have concluded that Ms Tasevski's case must be accepted and the matter remitted to a differently constituted appeal panel to be dealt with according to law.

The Appeal Panel's agreed error

1. The Appeal Panel's reasons began with an explanation of the background to the appeal and the parties' submissions, before turning to its findings and reasons. Those findings began with an explanation of its obligation to give reasons and its role on the appeal, given the grounds advanced. It then gave an explanation of the assessor's conclusions and noted that the alleged error was in the assessment of self care and personal hygiene.
2. The Panel then turned to the PIRS categories, beginning with an explanation of its statutory task, which the parties agreed was entirely wrong. It said: "25. The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion. 26. In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]: "It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review." In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS said at [23]: "By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: '. the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face'. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides 'the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment': Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are 'examples only': see Jenkins v Ambulance Service of New South Wales2. The Appeal Panel said 'they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected': Appeal Panel reasons at [37]." 27. In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said: "66. 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. 70. To find an error in the statutory sense, the Appeal Panel's task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence. 71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel's opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS's reasons disclose a demonstrable error."
3. It was common ground on this application that: 1. The Panel misstated what had been decided in Vannini. 2. Vannini was an appeal from a judge of this Court. It concerned whether another appeal panel had fallen into jurisdictional error by substituting its own view for that of the assessor, without having found an error of the kind specified in s 327(3). The grounds there advanced were also that the assessment had been made on the basis of incorrect criteria or contained a demonstrable error. The issues on that appeal concerned the power of the appeal panel on review under ss 327 and 328 and the meaning of "demonstrable error". 3. Gleeson JA explained that "demonstrable error", a term which is not defined, is intended to convey the degree of strictness of scrutiny to which the disputed assessment may be subjected. As such, a finding of "error alone is not sufficient". The error must be "material" and apparent in the certificate, although there is no limit on the material to which the Panel may have regard when assessing whether the certificate "contains" a demonstrable error: at [77]-[78]. 4. An error is also not demonstrable merely because the Panel disagrees with the assessor's opinion: at [87]. An error for which there is no information or material to support the finding made, rather than a difference of opinion, will establish a demonstrable error. It was not necessary for Gleeson JA to consider how the reasoning of an assessor may be shown to be wrong in every respect. In that case, what the Panel had to consider was the assessor's reasoning on the question of causation: s 323. The relevant issue was "whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality? If so, what was that proportion?": at [90]. 5. His Honour explained, as to those issues: "[91] The first question involved an assessment by the Panel, substantially of fact by reference to the evidence, although in part informed by the exercise of a clinical judgment. Such an assessment may be characterised as an evaluative judgment or conclusion based on findings of fact. Nonetheless, the legal criterion applied to reach that conclusion on causation demands a unique outcome, rather than tolerates a range of outcomes. Accordingly the reasoning and finding of the medical specialist attracts the correctness standard of review by a Panel. [92] The position may be different in relation to the second question. A finding as to the proportion of permanent impairment due to previous injury, pre-existing condition or abnormality involves matters of degree and impression. The applicable standard of the "proportion" of contributory contribution under s 323 permits some latitude of opinion such as to admit of a range of legally permissible outcomes. That is not to say that such a conclusion is necessarily beyond review by an Appeal Panel on the ground of demonstrable error. However, the resolution of that question should be left to a case where it is dispositive." 1. What Garling J explained in Jenkins was irrelevant to the Panel's statutory task, given that in what the Panel quoted, his Honour was explaining what was required on a judicial review application and not in the task of an appeal panel under this statutory scheme. 2. What the Panel quoted from Ferguson did not reflect what was there decided. What it quoted was Campbell J's explanation of another appeal panel's approach to the appeal it had heard. But his Honour set aside its decision, having concluded that this panel had erred in declining to inquire into the critical question which arose for it to consider on that appeal: at [27]. Further, that it had asked itself the wrong question: at [29]. The result in that case was that the Panel had also erred in its conclusion that there was no evidence which could support a Class 3 assessment in relation to the social functioning scale. There was such evidence and so the Panel's conclusion had involved an error of law: at [32]-[33].
4. In the result, in these proceedings there was finally no issue between the parties that in approaching what it had to decide on this appeal on the basis of its misunderstanding of these authorities, the Panel had fallen into error.
5. The Appeal Panel had to approach its task in accordance with what was actually decided in the authorities to which it referred, as well as what was decided in Ballas. That required its consideration of the grounds of appeal advanced, incorrect criteria and demonstrable error, to be approached in light of the there explained requirement for relevant conduct to be assigned to the correct scale, so that its correct class could be arrived at.
6. Not having referred to this requirement or understood the authorities to which it referred, that the Panel did not correctly approach its task must be accepted. That it made no reference to what was explained in Ballas about assigning conduct to the correct scale to ensure that an irrelevant consideration is not taken into account in assigning the disputed scale to a class, supports that conclusion, as does the reasons which the Panel gave.
7. Still, the defence case was that despite this, the Panel had arrived at the correct conclusion about the disputed class classification, given the evidence. That was also disputed.

Did the correctness standard apply?

1. Whether this standard applied was in issue. I consider that it did.
2. For Ms Tasevski, it was contended that the Appeal Panel had erred, not having considered what was decided in Ballas, or appreciated or applied the "correctness standard" which Gleeson JA had explained in Vannini. This was despite it being obliged to apply that standard in arriving at its conclusions about whether the assessor had erred.
3. That standard was explained in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [48]-[49]. It is a standard which does not involve the exercise of a discretion, which would tolerate a range of outcomes, but where the applicable legal criterion demands a unique outcome.
4. The question before the Appeal Panel concerned the correct classification of the self care and personal hygiene scale. That depending on a consideration of the evidence about the conduct relevant to that scale. That evidence had to be considered in light of the person's cultural background, age, sex and cultural norms. While minds might reasonably differ about the severity of an impairment, there is no discretion about assignment of conduct to a scale.
5. Under the statutory scheme there is also only one answer to the question of the proper class characterisation of each scale. In this case, that was either a Class 2 or 3 classification for the self care and personal hygiene scale. The statutory scheme not permitting the conclusion that the classification of the scale fell into both or between the two classes.
6. The defence contention was, however, that in a case where the evidence permitted a difference of opinion about the level of impairment being assessed, the correctness standard did not apply. That was because the statutory scheme permitted a range of legally available outcomes on class assignment. It followed that in this case, characterisation of the conduct relevant to the self care and personal hygiene scale permitted the conclusion that the scale was either Class 2 or Class 3, neither involving demonstrable error.
7. I am satisfied that this cannot be accepted.
8. There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person's impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
9. But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. In this case, that exercise could only result in one conclusion, that the correct class assignment of the self care and personal hygiene scale was either Class 2, a mild impairment or Class 3, a moderate impairment, given the relevant conduct on which that assessment depended.
10. By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person's whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor's discretion. It must be undertaken in accordance with all of the applicable statutory requirements.
11. Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.
12. When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.
13. This does leave open the possibility that the evidence relevant to a particular scale will establish that it lies on the border of two classes, in this case the mild and moderate classes. They are described for the self care and personal hygiene class to be: "Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkept occasionally; sometimes misses a meal or relies on take-away food. Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition."
14. But still the assessor must come to a view about which of those classes the scale falls into, giving reasons for the conclusion reached. It is not permissible for the assessor to conclude that the scale falls outside of the specified classes, or between two of them.
15. It follows that on an appeal where the grounds advanced are application of the wrong criteria or making a demonstrable error in the conclusions reached about the severity of the impairment, the Panel has to consider the assessor's conclusion about the correct class of any disputed scale, by confining itself to the conduct relevant to that scale and the requirements of the Guidelines.
16. Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was "open".
17. It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.

What the Panel decided

1. In this case, as well as concluding that the Class 2 classification was open to the assessor, the Panel said that it was satisfied that this conclusion was not in error, nor made on the basis of incorrect criteria. Further, it found that the conclusion was not glaringly improbable; the assessor had not been unaware of significant factual matters; there was no evidence of clear misunderstanding; and his reasoning process had been clearly expressed.
2. The Panel observed that the assessment departed from that of Dr Allen, who had arrived at a Class 3 score, but it agreed with the assessor, finally explaining: "47. The Medical Assessor considered, taking into account this history, that the appellant was independent and initiated all self-care without prompting. He also commented that she was engaged in intermittent fasting to lose weight. 48. The Medical Assessor noted that Dr Allan assessed the appellant as Class 3 for self care and personal hygiene and commented on Or Allan's assessment. The Medical Assessor was clearly aware that his assessment differed from that of Dr Allan and he provided clear reasons for the difference in assessment. 49. The Appeal Panel considered that the Medical Assessor was aware of the appellant's age, sex, culture and long term marital status. The Medical Assessor noted that the appellant showered when going out. The appellant submitted that showering when going out amounted to the appellant being prompted to shower but the Appeal Panel considered that there was a distinction between being actually prompted to shower by another person and the appellant realising that she had to go out and showering before she went out. 50. The appellant submitted that her fasting and weight loss attempts were the result of her being prompted to lose weight by her doctors and were not evidence of her being able to undertake self care unprompted. The Appeal Panel considered that even though the appellant was advised by her doctors to lose weight, her fasting was still an indication that she was able to adhere to this advice independently. 51. The Appeal Panel considered that this was a case where the question of whether the findings fell into Class 2 or Class 3 for self care and personal hygiene amounted to a "difference of opinion about which reasonable minds may differ". The Appeal Panel was not satisfied that the categorisation by the Medical Assessor was glaringly improbable, or that it had been demonstrated that the Medical Assessor was unaware of significant factual matters. There was no evidence of a clear misunderstanding and the reasoning process had been clearly expressed. 52. Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for self care and personal hygiene. The Appeal Panel was satisfied that the rating of Class 2 for self care and personal hygiene was not in error and the assessment was not made on the basis of incorrect criteria."
3. It may be accepted that a conclusion which was found to be glaringly improbable would have identified a demonstrable error. As would a decision made without consideration of relevant factual material, as the result of a misunderstanding of that material, or by reference to material not relevant to the class being assessed. The latter would have involved error of the kind considered in Ballas.
4. But given its incorrect understanding of the law, it cannot be accepted that the Panel undertook its task of considering whether any such errors had been made, in accordance with law. Or that it did not err in the conclusions that it arrived at about the matters pursued on the appeal, given its misunderstanding.
5. That is underscored by the cases which the parties had pursued on the appeal and the Panel's observations.

The parties' cases on the appeal

1. Ms Tasevski did not seek a further medical examination and the Panel proceeded on the evidence before the assessor. That included the reports of medical experts about both the injuries she had suffered and her resulting whole person impairment. One expert considered that no definite diagnosis could be made, nor any assessment of permanent impairment undertaken. Another was able to make a diagnosis and concluded that she had suffered 20% whole permanent impairment and that the correct assessment of the self care and personal hygiene scale was Class 3.
2. Clearly neither the assessor nor the Appeal Panel entirely accepted either opinion. They did not have to, being required as they were to form their own opinions about what arose to be considered on the assessment and, in the case of the Panel, what was raised by the grounds of the appeal about the errors it was claimed the assessor had fallen into.
3. For her part, Ms Tasevski noted that Dr Hong had referred to evidence that: "Ms Tasevski's husband does most of the cooking and shopping and complains she does not do the washing up like she used to. She said she only goes to the shop when she has to, maybe every couple of weeks. She has been trying to manage her weight better and does intermittent fasting and avoids carbohydrates, but has not been successful. She said she only showers when she has to go out and averages once or twice a week only."
4. Her case was that this and other evidence was inconsistent with the classification arrived at, given what the Guidelines provided.
5. It was noted that no reference had been made by the Panel to Ms Tasevski's own statement, which further supported a Class 3 impairment. There, she had said that "[m]y husband does most of the cooking now. I may help him once per week with basic things. I have no motivation to attend to my self-care because it's not like I'm going anywhere. I shower at most around twice per week. My husband will do most of the shopping and cleaning."
6. Further, Ms Tasevski contended that when this evidence was considered in light of her cultural background, sex and age, the conclusion that the impairment was a Class 2, not 3, was not open.
7. For its part, Westpac did not then contend that Ms Tasevski had not suffered a psychiatric injury. But rather that her appeal had to fail, her case relating merely to a difference of medical opinion, which did not raise a statutorily available appeal ground: s 327(3).

The Panel erred further

1. What the assessor had recorded on the PIRS assessment form was: PIRS Category Class Reason for Decision Self-care and personal hygiene 2 Ms Tasevski said she only showers 1 to 2 times per week and eats 1 to 2 meals a day, and engages in intermittent fasting. She does a small amount of shopping and cooking. She is capable of independent living without regular support, and does not need prompting with self-care.

Social and recreational activities 2 She attends regular social recreational activities with her family and friends. Her usual recreational activities revolve around her family and friends, such as eating out or visiting her friends, which she continues to engage in regularly, but less since the subject injury.

Travel 2 Ms Tasevski is anxious and avoids unfamiliar places.

Ms Tasevski's relationship with her husband has deteriorated and remains intact. Social functioning 2 She is anxious and socially avoidant, and ceased contact with her friends. She is able to maintain a handful of friendships. The relationship with her general family, children and siblings is good.

Concentration, persistence and pace 3 Ms Tasevski described having poor concentration. She cannot engage in intellectually demanding tasks or reading books, due to poor concentration.

Employability 5 Ms Tasevski has no work capacity due to her anxiety and fear-avoidance.

1. The Panel preceded its conclusions with an explanation of the assessor's reasons and the case which had been advanced for Ms Tasevski on the appeal, by reference to the evidence and Guidelines. It also noted the requirement that account be taken of Ms Tasevski's cultural background and activities usual for her age, sex and cultural norms.
2. It observed that Dr Hong had concluded that Ms Tasevski had suffered PTSD which had not substantially remitted after she ceased work; that she still suffered that condition, which had been aggravated by events at work and was now chronic; and that she also had major depressive disorder. Further, that her condition had stabilised.
3. The Panel noted evidence the assessor had referred to, which included seemingly significant consequences of Ms Tasevski's chronic disorders. They included that she no longer cooked, washed up or shopped as she used to; showered only once or twice a week; struggled to maintain her weight; had poor motivation to walk with her friends as she used to; had not been away on a trip for a long time; and that her marriage of 38 years was now strained. It referred in some detail to evidence taken into account under the heading "Social Activities/ADL".
4. It should be observed that this evidence did not all relate to the self care and personal hygiene scale the subject of the appeal. Still, the Panel concluded that the assessor had not applied incorrect criteria and that demonstrable error was not established.
5. But in considering the assessor's conclusions, the Panel could not overlook what Ballas had decided about correct identification of which scale or category of functional impairment particular conduct fits within and then confining the assessment to the relevant conduct. There it was held that if conduct is wrongly assigned to one scale, when it should have been assigned to another, error will result. But this was not considered on the appeal.
6. Assignment of conduct to the relevant scale did not involve any discretion. It was only once conduct was assigned to the correct scale that its class assessment could be determined, that finally resulting in a conclusion about the severity of Ms Tasevski's injury and her whole person impairment.
7. Both the assessor and the Panel thus had to confine their consideration of each scale to the conduct relevant to that scale. On the appeal only the self care and personal hygiene arising to be considered. The relevant conduct also had to be considered in the context of Ms Tasevski being a woman of some 62 years, of Macedonian background.
8. This was not a case like Ferguson. There the panel was clearly wrong in taking the view that there was no evidence which could have supported a Class 3 or moderate assessment. That conclusion had involved an error of law, given the evidence which could have supported such a class assessment: at [31]-[33].
9. Here there was also relevant evidence which supported a Class 3 classification for the disputed scale, as the Panel recognised, an example given in the Guideline being that the injured person no longer prepares his or her own meals. As did the evidence about the infrequency with which Ms Tasevski now showered, only when she left the house. By comparison, Class 2 included "looks after self adequately", to which no reference was made. The evidence discussed did not appear to accord with that description.
10. The Panel did note Ms Tasevski's reliance on the evidence about her age, sex, culture and long term marital status as warranting a Class 3 score, but it took the view that the assessor had been aware of this.
11. More than awareness of the matters which had to be considered was required. In arriving at conclusions about the classification of the scale in issue as mild or moderate, account thus had to be taken of Ms Tasevski's cultural background and activities usual for her age, sex and cultural norms. That was because the Guidelines accepted that they could have an impact on the correct assessment of an impairment.
12. That this occurred is not apparent.
13. In the result, I am satisfied that it cannot be concluded that the Panel did not err further in concluding that there had been no demonstrable error in the assessor's approach. The requirements of the statutory scheme, its own approach to what was raised by the appeal and its explanation of the conclusions which it reached, do not leave that conclusion open.

Could a different view be reached on the evidence by another Appeal Panel

1. The result is, I consider, that it must not only be accepted that this appeal went awry when the Appeal Panel misunderstood the authorities to which it referred, but that the result was that it did not approach the appeal in accordance with what they or Ballas decided.
2. It must also be accepted that another panel, approaching the appeal in accordance with applicable law, might reach a different conclusion about the grounds of appeal advanced. That could follow if the panel confined itself to a consideration of the evidence about the conduct relevant to the disputed scale and what the Guidelines required be taken into account on the class assessment of that scale, when considering the reasons which the assessor gave for the conclusions he reached and determining whether he had fallen into the alleged errors.
3. Impairment is something about which reasonable minds may differ. But the class classification of the six scales which the statutory scheme requires can only result from adherence to the applicable Guidelines. They require not only that only the conduct relevant to a particular scale be considered in arriving at a conclusion about its classification, but also that this conduct be considered in light of the injured person's cultural background and activities usual for his or her age, sex and cultural norms.
4. I am satisfied that in this case, it is open to another panel, correctly approaching its appellate task according to law, to take the view that there was demonstrable error on the part of the assessor in the conclusions he arrived at, given his approach to this assessment.
5. In the result, I have concluded that the Panel's decision must be set aside and the matter remitted to a differently constituted appeal panel to be considered according to law.

Orders

1. For these reasons I order that: 1. The Appeal Panel's decision is set aside; 2. The matter is remitted to a differently constituted appeal panel to be considered according to law; and 3. Unless the parties approach to be heard within 14 days with short written submissions, the Court's order will be that Westpac bear Ms Tasevski's costs of the proceedings, 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: 18 April 2024