Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 Hearing dates: 10 June 2015 Decision date: 20 October 2015 Before: McColl and Meagher JJA at [1]; Macfarlan JA at [49] Decision: 1. First respondent's notice of motion filed 22 April 2015 dismissed. 2. Appeal dismissed with costs. Catchwords: ADMINISTRATIVE LAW – judicial review – medical assessment under Motor Accidents Compensation Act 1999 (NSW), Ch 3, Pt 3.4 – statutory task of Review Panel under s 63(3A) – whether Review Panel failed to undertake a new assessment of matters concerned – whether Review Panel limited its assessment to asserted errors of original assessor – whether denial of procedural fairness where respondent not given opportunity to address Review Panel on conflicting evidence from which an inference adverse to her was drawn Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), Ch 3, Pt 3.4 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW) Supreme Court Act 1970 (NSW), ss 69, 101 Cases Cited: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292; 59 MVR 195 Category: Principal judgment Parties: Allianz Australia Insurance Ltd (Appellant) Kelly Rutland (First Respondent) Motor Accidents Authority of New South Wales (Second Respondent) The Medical Review Panel comprising Assessor Brian Parsonage, Assessor Lorraine Dennersein and Assessor Wayne Mason (Third Respondent) Representation: Counsel: M A Robinson SC with J Gumbert (Appellant) E G Romaniuk SC with T L Hickey (First Respondent) Solicitors: Sparke Helmore (Appellant) Commins Hendriks (First Respondent) Crown Solicitor of NSW (Second and Third Respondents) File Number(s): 2014/361699 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2014] NSWSC 1583 Date of Decision: 14 November 2014 Before: Garling J File Number(s): 2014/176677 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. McCOLL and MEAGHER JJA: This is an appeal from a decision of the primary judge (Garling J) in proceedings brought under s 69 of the Supreme Court Act 1970 (NSW), setting aside a medical assessment of a review panel of medical assessors undertaken under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act): Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583; 68 MVR 533. Overview 1. On 24 April 2009, the younger sister of Kelly Rutland (the respondent) was killed in a motorcycle accident. The respondent attended the scene of the accident and also the hospital, for the purpose of identifying her sister's body. These experiences traumatised the respondent. In September 2010 she served a personal injury claim on the appellant motor vehicle insurer (Allianz). In September 2012 the respondent brought proceedings against Allianz in the District Court, claiming damages for psychiatric injury arising from nervous shock. 2. Allianz disputed that the degree of permanent impairment suffered by the respondent as a result of her psychological injury was greater than 10%: MAC Act, s 58(1)(d). That dispute was referred by the respondent to the Motor Accidents Authority of New South Wales for assessment. The appointed medical assessor, Dr Jager, assessed her impairment at 14%. Allianz applied for a review of that assessment and a panel of three assessors (the Review Panel) concluded the respondent's permanent impairment was less than the 10% threshold required for the recovery of damages in respect of non-economic loss: MAC Act, s 131. The primary judge set the Review Panel's assessment aside. Allianz appeals from that order. 3. His Honour's decision was made on two bases. The first was that the Review Panel erred in not undertaking a fresh assessment of the extent of the respondent's permanent impairment: [77]-[83]. The second was that the Review Panel had failed to accord the respondent procedural fairness in arriving at its conclusion as to the extent of her impairment in one of the six relevant areas of function: [84]-[89]. Allianz challenges, by grounds 1 and 3, the first of those bases and, by ground 2 it challenges the other. Preliminary question as to competency of appeal 1. The respondent raised a preliminary question as to the competency of the appeal. She submitted that a grant of leave was required because the appeal was from an interlocutory decision and involved a monetary value of less than $100,000: Supreme Court Act, ss 101(2)(e), 101(2)(r). The submission as to the interlocutory nature of the proceedings is rejected. The "proceedings in the Court", meaning the Supreme Court, were for judicial review under s 69. The primary judge's decision was of final legal effect in relation to those proceedings, notwithstanding that the personal injury proceedings in the District Court remain ongoing. Judicial review proceedings concern the monetary value in the underlying dispute in a way that satisfies the connection between proceedings and value referred to in s 101(2)(r): NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292; 59 MVR 195 at [16]. Here, it is apparent that the respondent's underlying claim exceeds $100,000. Allianz did not therefore require leave to bring its appeal. 2. To enable an understanding of the grounds of appeal, it is necessary first to refer to the relevant statutory guidelines, summarise Dr Jager's assessment, refer to the statutory provisions governing the review and then to summarise the Review Panel's reasoning. Statutory guidelines 1. By s 65 of the MAC Act medical assessments under Ch 3, Pt 3.4 are subject to the provisions of the Motor Accident Authority's Medical Guidelines issued under s 44. In the present context the relevant guidelines were the Medical Assessment Guidelines (MA Guidelines) issued under s 44(1)(d) and effective on 1 October 2008, and the Permanent Impairment Guidelines (PI Guidelines) issued under s 44(1)(c) and which commenced on 1 October 2007. The provisions of the former relevant to assessments performed by the Review Panel are as follows. 16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked; … 1. The PI Guidelines direct that an assessment of permanent impairment should consider impairment as it is at the time of the assessment: cl 1.23. Clause 1.20 outlines the three stages of such an assessment: (i) A review of medical and hospital records, including: - all available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and - diagnostic findings from all available relevant investigations. (ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines … necessary to determine the percentage impairment; and (iii) The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning on which the determination is based. … 1. Assessment of permanent impairment due to psychiatric injury is dealt with in Ch 7 of the PI Guidelines. Such an assessment must be undertaken in accordance with a Psychiatric Impairment Rating Scale which addresses impairment in six specific areas of function. Impairment in each area is then rated using class descriptors ranging from one to five according to severity. Clauses 7.17 and 7.20 provided: 7.17 The scale is to be used by a properly trained assessor. Clinical judgment will be the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis, and clinical experience. 7.20 … The classes in each Area of Function are described by way of common examples. These are intended to be illustrative rather than literal criteria. The assessor should obtain a history of the injured person's pre-accident lifestyle, activities and habits and then assess the extent to which these have changed as a result of the psychiatric injury. The assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors. 1. As the primary judge noted at [53], the assessment undertaken by Dr Jager and the assessment of the Review Panel had to be conducted having regard to these guidelines and requirements. Dr Jager's assessment 1. Dr Jager was asked to certify the degree of permanent impairment suffered by the respondent in respect of the following injuries: Psychological – post traumatic stress disorder, major depressive disorder, adjustment disorder with depressed mood, nervous shock, increased irritability, difficulty with concentration, social withdrawal, weight gain, sleep disturbance and nightmare of sisters death, loss of libido/depression – remitted, bereavement 1. The Certificate provided by Dr Jager to the Medical Assessment Service of the Authority was dated 29 October 2013 and recorded the following conclusions: The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: Major Depressive Disorder Chronic Posttraumatic Stress Disorder … Category Class Reason for Decision 1. Self Care and Personal Hygiene 2 Her house is a mess. She misses meals and sometimes does not dress or shower for example if she is not going out. 2. Social and Recreational Activities 3 She only goes out to social events accompanied and then only goes for a minimal time and makes excuses to go. 3. Travel 1 She is independent in travel. 4. Social Functioning 3 She said she had no emotional energy left to share with her partner and she has lost most of her friendships because she has withdrawn from everyone including her family. 5. Concentration, Persistence and Pace 3 She is forgetful, eg what she is saying. Forgetfulness was evident at interview. 6. Adaptation 2 Although she is working, she is not as efficient and does not enjoy her work any more. She was off work for six months before the accident but has returned and has been absent frequently. Her occupational impairment according to the scale is mild. [Class 2 refers to a 'Mild' impairment and Class 3 to a 'Moderate' impairment.] … A Current % permanent impairment 13% B Pre-existing/subsequent % impairment 0% C Adjustments % for effects of treatment 1% Final % permanent impairment 14% 1. On 11 December 2013 Allianz applied for a review of Dr Jager's assessment. Both parties provided submissions to the Motor Accident Authority in relation to that application, but no additional factual material was provided. On 6 February 2014, the proper officer of that Authority referred the matter to a panel of three medical assessors. Relevant statutory provisions 1. Review of a medical assessment by a panel of medical assessors is provided for by s 63 of the MAC Act. That section relevantly provided: (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. … (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. … 1. On 13 February 2014 the Motor Accident Authority wrote to the respondent's solicitors notifying of the convening of the Review Panel. That letter continued: If you object to the Review Panel being conducted without an examination of the claimant, please advise immediately in writing, providing reasons why you believe an examination is required. If no objections are received by the initial conference date shown above, the Panel will assume that there is no objection to the review being conducted on the documentary material provided, should they consider this to be possible. Review Panel's assessment 1. Before setting out its conclusions, the Review Panel described the assessment that it had undertaken: 3. Matters Considered and Decided by the Panel The Review Panel considered afresh all aspects of the assessment under review. A. Evidence Considered The Panel considered all of the available evidence and decided that a re-examination of the claimant was not necessary because the three issues raised by the applicant could be addressed on the documents available and that no other issues were raised by the respondent, nor did the Panel identify any other issues which needed to be addressed. B. Additional Evidence Nil. C. Panel Deliberations [The Panel records that there was no dispute between the parties as to the injuries suffered by the respondent; the cause of those injuries; or the fact that they amounted to a permanent impairment.] The disputes in this matter were whether Assessor Jager had incorrectly rated the claimant in the category of Social Functioning and in the category of Concentration, Persistence and Pace. The applicant also submitted that there had been an error in the assessment of the claimant's pre-existing impairment. There was no dispute about the ratings of other categories of permanent impairment with which the Panel agreed largely for the reasons given by Assessor Jager and for the reasons given in the tables in section 4. [Those tables are in the same form as the tables prepared by Dr Jager (see [12] above) except that the reasons for decision are different in relation to "Self care and personal hygiene", "Social functioning", "Concentration, persistence and pace" and "Adaptation".] … 1. The Review Panel's conclusions which follow are set out under three headings, which correspond to the three errors said by Allianz to exist in Dr Jager's assessment. Assessment of Impairment of Social Functioning … Even though Assessor Jager recorded the claimant as saying that she had "withdrawn from everyone including her family", the evidence is that she was still engaged with and caring for her children and that while her relationship with her partner was strained, there were no indicators consistent with the descriptors of Class 3 Impairment. Therefore the Panel concluded that the claimant's impairment in this area was Class 2. Concentration, Persistence and Pace … Being "forgetful" does not correlate with the descriptors of the assessment of impairment of Concentration, Persistence and Pace in the MAA Permanent Impairment Guidelines. … It was not disputed that the claimant had continued to work in paid employment as a Technical Teacher Armament Technician and was working in a full-time capacity until August 2013 when, following a restructure, she worked 19 hours per week. In order to maintain this employment, the Panel considered that it would not be possible to have a Class 3 Impairment of Concentration, Persistence and Pace described as being one where the claimant would be "unable to read more than newspaper articles and would find it difficult to follow complex instructions, make significant repairs to a motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting". In order to prepare for and teach such a course the claimant would at least have to have the ability to focus on intellectually demanding tasks up to thirty minutes, which is an illustrative example of Class 2 impairment. … Pre-existing Impairment ... [T]he Review Panel concluded there were no grounds for disturbing Assessor Jager's assessment of pre-existing impairment. Did the Review Panel fail to exercise its statutory task by limiting its assessment to the matters said to be "under review"? (grounds 1 and 3) 1. The task of a Review Panel under s 63(3A) of the MAC Act is to assess the "medical assessment" referred to it, which here involved assessing the respondent's degree of permanent impairment: Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 at [9]. That assessment is "not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned" [Emphasis added]. While the Review Panel can consider the errors said to exist in the assessment that gave rise to the application for review, the language of s 63(3A) makes clear that it must approach that task "by way of a new assessment of all the matters" and not by way of correcting asserted errors in the first assessment. 2. Section 63(3A) confirmed the position to be as stated by Giles JA (Allsop P agreeing) in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [38]. (That decision was delivered on 14 July 2008 which was after that sub-section had been enacted but before it commenced on 1 October 2008: Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW).) … The review panel has one task, to review the medical assessment referred to it and either confirm the medical assessor's certificate or revoke it and issue a new certificate. … In order to come to its decision to confirm the medical assessor's certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment. 1. Whether the Review Panel did give consideration to the whole of the question as to the respondent's degree of permanent impairment turns on the nature of its assessment as revealed by its reasons, taking into account the material it had before it. 2. The primary judge held that the Review Panel did not properly consider that question, concluding at [82]: [T]hey must conduct the assessment as a whole and cannot limit the conduct of their assessment to the matters raised in the insurer's submission to the Proper Officer. Notwithstanding what seems to be a routine incantation at the start of the Certificate and reasons that they were making an "assessment afresh", in substance, that is what the Review Panel did here. 1. His reasoning for so concluding included (at [77]) that the Review Panel had not examined the respondent in the circumstances of this case: Here, the Review Panel had to determine whether the plaintiff's psychological injuries gave rise to permanent impairment and if so, to what extent. It had to do so as at the date of its assessment. It was not determining the extent of whole person impairment, if any, at some earlier date, but rather as at the date of its assessment. In circumstances where the [Permanent Impairment Rating Scale], to which it was necessary to have regard in accordance with the Guidelines, related to impairment in the identified areas of function, it was not possible, in the circumstances here, for the Review Panel to undertake an assessment and form its opinion without such a consultation and examination. 1. Allianz submits that the primary judge erred in finding that the Review Panel had to interview and examine the respondent in order to perform a de novo assessment of her impairment. Furthermore, it suggested in argument that his Honour's finding in this respect amounted to a mandatory requirement that 'almost every review panel' undertake such an examination (tcpt 10/06/15, p 28). 2. That submission overstates the effect of the primary judge's reasoning in at least two respects. First, his Honour expressly declined to determine whether examinations are usually or practically essential to assessments undertaken by review panels: [76]. Secondly, he did not find that an examination of the respondent was a prerequisite to performance of the Review Panel's statutory task because the failure to examine her was not considered to be a freestanding reason for setting aside the assessment: [78]. The question before the primary judge, as on appeal, was whether the Review Panel approached its task too narrowly so as not to conduct a new assessment of all the relevant matters, with its determination that it was unnecessary to examine the respondent being a possible reflection of that overall approach. 3. Allianz submits that the course adopted by the Review Panel was in accordance with the brief reasoning approach outlined by Giles JA in the passage from McKee extracted at [19] above. Whilst it may be accepted that there are different ways in which the Review Panel might in various circumstances go about successfully discharging its task, it must nevertheless be evident that the Review Panel has undertaken its "one task" of assessing the matter, not the errors, referred to it as a whole and afresh: McKee at [38]; Frost at [9]. In our view, taking account of the medical reports and other material before it, the Review Panel's reasoning shows its overall approach to have been that of addressing asserted error rather than of undertaking its own comprehensive assessment. 4. At the outset, the Review Panel states that it has "considered afresh all aspects of the assessment under review" [Emphasis added]. This language is at odds with the statutory language in s 63(3A), which requires a consideration of all the matters with which the medical assessment is concerned as a whole. It is no doubt the case that infelicitous or loose language on the part of a tribunal or expert panel should not be over-emphasised or over-scrutinised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. However, it does not follow that any ambiguity in approach or reasoning has to be resolved in the decision-maker's favour: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]. 5. The Review Panel's reasons go on to state that it has "considered all of the available evidence" and that it did not "identify any other issues which needed to be addressed", beyond those raised by Allianz. On matters not in dispute, the Review Panel's approach was to agree with the first assessment "largely for the reasons given by Assessor Jager and for the reasons given in the tables in section 4." Those additional reasons in each case take as their starting point a comment or statement of Dr Jager in relation to the same area of function. 6. The structure of the Review Panel's reasons, in providing its analysis under three headings that correspond to the errors asserted by Allianz, also indicates an approach directed to correcting for errors, rather than one involving the undertaking of a new assessment. This is further reflected in the scarce reference to material other than that described in Dr Jager's assessment, or in Allianz' submissions. 7. An example of this can be seen in the Review Panel's consideration of the respondent's area of function – "Concentration, persistence and pace". The Review Panel concludes that Dr Jager's assessment of the respondent as "forgetful" is irrelevant. It does not, however, then go on to engage with or re-examine the reports of Dr Gertler, Professor McFarlane and Dr Lewin. Professor McFarlane in the latest of those reports dated 3 May 2013 concluded that the respondent was "barely coping" at work and that her capacity to be employed was "highly fragile". This material is neither referred to nor considered in the Review Panel's reasons. The Review Panel appears to have proceeded on the basis that if the finding of "forgetfulness" on which Dr Jager relied for his assessment was discounted, the respondent's capacity to perform her work duties could be assumed. 8. The Review Panel's assessment was to be made with the benefit of Dr Jager's report, as well as all the material that was before him: MA Guidelines, cl 16.19. As Giles JA explained in McKee at [23], the "plain purpose of s 63" of the MAC Act is to empower the Review Panel to apply its "collegiate professional expertise" to an assessment in the same way that the single assessor had done before them. This cannot occur where the Review Panel gives primacy to the assessment under review in the sense of assuming that, where error is shown in the reasons of the original assessor, there is no need for further consideration of or resort to the underlying factual material beyond that identified in the original assessor's reasons. There may be other material, not expressly identified by that assessor, which nonetheless supports his or her conclusions. Alternatively, having examined all the same material as the original assessor, the Review Panel may reach a different clinical opinion. 9. Finally, although the Review Panel could determine that it was unnecessary to examine the respondent, its discretion to do so (MA Guidelines, cl 16.21.2) is limited by the requirement that it assess all of the matters with which the permanent impairment assessment is concerned (s 63(3A)). Additional matters to be taken into account include (1) the requirement that the Review Panel assess the impairment at the time the matter comes before it (PI Guidelines, cl 1.23); (2) that an assessment of permanent impairment is said to involve a clinical examination "wherever possible" to obtain the required information (PI Guidelines, cl 1.20(ii)); (3) that clinical judgment is considered the "most important tool" in assessing a mental impairment in accordance with the Psychiatric Impairment Rating Scale (PI Guidelines, cl 7.17); and (4) that the Review Panel was required to determine whether additional information was needed (MA Guidelines, cl 16.21.3). 10. Allianz submitted that it was not necessary in this case for the Review Panel to examine and interview the respondent. Two matters were said to support that being so. The first was that it was unlikely that her impairment had changed in the months between Dr Jager's assessment and that of the Review Panel, as her condition was said to have stabilised. The second was that the respondent had not objected to the Review Panel conducting its assessment without the benefit of a clinical examination when she had been notified of that possibility by the Motor Accident Authority's letter dated 13 February 2014 (see [15] above). 11. The task before the Review Panel required that it exercise its collective clinical judgment as to the respondent's impairment at the time of its deliberation on 7 March 2014. The Review Panel had before it Dr Jager's reasons for his certificate, based on his examination of the respondent on 8 October 2013, and the other medical reports which pre-dated that assessment. Notably, the Review Panel did not have the benefit of any transcript or clinical notes associated with Dr Jager's examination. In the circumstances, and recognising that clinical judgment between medical practitioners may vary on the issue which had to be assessed, it would, in our view, be surprising and unusual that a panel of medical assessors seeking to assess a person's degree of impairment due to a particular psychological injury would not interview the relevant individual so as to be satisfied that they have an accurate and complete history of his or her pre-accident lifestyle, activities and habits and the extent to which those may have changed as a result of that injury (PI Guidelines, cl 7.20). That an examination of the respondent did not occur in this case, when considered with the other matters to which we have referred, confirms our view that the Review Panel undertook its task by reviewing the asserted errors in the assessment already undertaken, rather than exercising an independent and contemporaneous clinical judgment on the question of permanent impairment. 12. It follows that we do not consider the primary judge erred in concluding that the Review Panel failed to exercise its statutory function. Grounds 1 and 3 should be dismissed. Was there a denial of procedural fairness in relation to the Review Panel's conclusion that the respondent was satisfactorily performing her work tasks? (ground 2) 1. The dictates of procedural fairness here, as in other circumstances, are concerned with avoiding practical injustice: Frost at [41]. As Leeming JA explained in Frost, this may require the panel of assessors reviewing a medical assessment under the MAC Act to draw to the attention of the claimant critical facts upon which they propose to base a decision to reject or depart from the underlying assessment and allow him or her an opportunity to respond: [32], [35]. 2. The primary judge considered (especially at [86] and [89]) that the Review Panel failed to accord the respondent procedural fairness in respect of its consideration of her functional impairment in the area, "Concentration, persistence and pace": [86] … [T]here was no factual basis upon which the Review Panel could have been informed as to the work duties which the plaintiff was actually undertaking, at the time of its own assessment. They could not be informed of those duties because they received no additional documents and dispensed with an examination of the plaintiff at which they could have enquired about these matters. … [89] Having regard to the significance of this particular element in the Review Panel's conclusions, to discharge that obligation of procedural fairness, the Review Panel had to cause enquiries to be made of the claimant as to what her duties actually involved. … 1. In its reasons extracted at [17] above, the Review Panel referred to the respondent's job title, "Technical Teacher Armament Technician", and because it was "not disputed" that she held that position, concluded that the respondent maintained the ability to perform that role and could not therefore suffer from a Class 3 (that is, a moderate) impairment. There are difficulties with the Review Panel's conclusion in this respect. While it was not disputed that the respondent was employed in that position, there was a real issue, as is clear from the evidence extracted below, as to whether she was substantially performing her duties, in the sense of coping with them in a sustainable way. 2. The evidence before the Review Panel as to the respondent's work duties was that contained in Dr Jager's reasons and in the reports of Dr Gertler, Professor McFarlane and Dr Lewin, each of which had been attached to the respondent's personal injury claim. 3. Dr Gertler's report dated 22 November 2010 noted that the respondent worked as a teacher at a TAFE college attached to the RAAF and that her "capacity for work … is affected by the symptoms of the chronic adjustment disorder". In his report, dated 1 June 2011, Professor McFarlane recorded that the respondent was currently working "as a trade teacher in aircraft maintenance". As to her capacity to perform that role, he observed: Whilst she has continued in her duties, her anxiety and fearfulness have prevented her maintaining her qualification in demolitions and explosives. Such work involves the ability to focus without anxiety in a technically complex and dangerous environment. … Furthermore, the traumatic memories relating to her sister's death have made it difficult to deal with certain occupational health and safety matters that are required as part of her teaching. These tend to make her distressed because of the triggers in these scenarios. Also, the difficulties with her memory and concentration have been disruptive of her functioning in the work environment. 1. Professor McFarlane made further comments as to the nature of the respondent's work and her capacity to perform it in his later report dated 3 May 2013. She struggles at work and find[s] some tasks a real strain due to their time pressures. She sometimes feels that her brain freezes and that she cannot cope with the job. … Her memory is a real problem and this creates major challenges at work. She feels a fool when she stumbles over words. Her job involves explaining the aircraft workings to students off the parade ground. … Both her cognitive difficulties with concentration and her problems with motivation are important issues determining her functional capacity. Also, she has significant anxiety and at times frank panic when having to teach in front of classes. … 1. In the report of Dr Lewin dated 22 March 2012, the respondent's "current" duties are described as "teaching junior, military personnel a variety of courses concerned with fixing aircraft". He concluded that the respondent's psychological injury did not impair her capacity to work. In relation to the respondent's "Concentration, persistence and pace", it was said that: Ms Rutland felt that she is able to focus upon technical matters when teaching. She is able to focus on her work for periods of sixty minutes or longer. She takes care to remain "on track". When teaching, she sometimes needs to carefully review the material so as not to be distracted. She describes being distracted by thoughts related to bereavement. 1. As the primary judge noted at [87], there may be a significant difference between a job description and the duties a person is actually engaged in. The respondent's job description does not reveal the duties she was actually performing. The Review Panel's reasons address only the respondent's inferred capacity to "prepare for and teach such a course". There was evidence that in April 2013 the respondent was involved in composing new curricula and experiencing difficulties in doing so. There was also evidence that in October 2010 she was experiencing difficulties with some occupational health and safety requirements related to the position she then held. There is no evidence that the Review Panel understood or attempted to understand the actual or various demands of the respondent's employment at the time it undertook its assessment. 2. Dr Jager's assessment of the respondent as moderately impaired in respect of "Concentration, persistence and pace" was reached following a clinical examination in which he had an opportunity to develop an understanding of the respondent's employment. He noted in his report that the respondent recalled she had "broke[n] down at work when she could not cope with a faulty course programme". Such recollections may have formed part of the basis for his conclusion that her impairment, in this respect, was moderate. That recollection was consistent with the respondent finding it "difficult to follow complex instructions, e.g. operating manuals …": PI Guidelines, Table 7.5. The Review Panel was at a significant information disadvantage. It did not have a record of all that the respondent had told Dr Jager, and chose not to examine the respondent for itself. 3. In the way the Review Panel apprehended this aspect of its assessment, a critical fact was whether the respondent was having any difficulties with her current work duties. Depending on the nature of those duties and the extent of any such difficulties, a conclusion might be drawn as to whether the respondent's functional impairment in that area was mild or moderate. The evidence before the Review Panel was conflicting and directed to the respondent's work position at different points in time. What was not clear from the material before the Review Panel was what the respondent's current position was, both as to the duties she was performing and as to whether she was coping with them. In those circumstances, the respondent should have been confronted with the conflicting position revealed by the evidence and given an opportunity to explain the current position, as she asserted it to be. 4. It is true both that Allianz' application for review put in issue the level of concentration required by the respondent's employment and that the respondent did not object to the Review Panel proceeding without a clinical examination. However, the respondent was entitled to assume that the Review Panel would undertake its task of assessing the degree of her permanent impairment afresh, on the basis of all the material, and that it would request further information if relevant to that enquiry. 5. This was not a case where the failure to afford procedural fairness served no practical disservice to the cause of the claimant because there was no further argument to be made or information given: cf Frost at [43]. As the primary judge noted, the obligation of procedural fairness did not necessarily require the Review Panel to examine the respondent: [89]. It did, however, require the Panel to give her the opportunity to address it on whether the inference it proposed to draw concerning an aspect of her functional impairment was available on the facts as they were at that time. 6. The primary judge did not err in concluding that the respondent was denied procedural fairness in relation to the Review Panel's assessment of the extent of her impairment. Ground 2 also is rejected. Conclusion 1. Allianz has not established that the primary judge erred in ordering that the Review Panel's certificate of assessment dated 13 March 2014 be set aside. The appeal should be dismissed with costs. 2. MACFARLAN JA: I agree with the judgment of McColl and Meagher JJA. ********** Amendments 22 October 2015 - Coversheet - "Decision" amended. [17] - in the quoted text "Technical Teacher Arament Technician" amended to read "Technical Teacher Armament Technician" 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: 22 October 2015