Sawaneh v Flintwood Disability Services Ltd

1. [1]

   By an Amended Summons filed 5 July 2023, Maneneh Lillian Sawaneh (“the plaintiff”) sought judicial review of a decision of the second defendant, being a Medical Appeal Panel constituted by Jane Peacock, Drew Dixon and Gregory McGroder (the “Panel”), dated 23 August 2022.

2. [2]

   The first defendant to the Summons is Flintwood Disability Services Ltd who brought the medical appeal before the Panel disputing an earlier decision of a Medical Assessor, Dr Mastroianni (the “Medical Assessor”).

3. [3]

   The third defendant, the President of the Personal Injury Commission of NSW, was responsible for issuing the Panel’s decision of 23 August 2022 to the plaintiff.

BACKGROUND

1. [4]

   The plaintiff is a 61-year-old woman who was formerly employed by the first defendant as a disability support worker.

2. [5]

   On 10 April 2020, the plaintiff, in the course of her employment, slipped on a wet floor. As a result of this incident, the plaintiff alleged she sustained injuries to her left lower extremity (left knee) and lumbar spine and suffered scarring. She has since experienced ongoing pain and restricted movement.

The Claim before the Insurer

1. [6]

   Following that incident the plaintiff lodged a claim with her employer’s insurer, iCare, to obtain compensation for the injury of 10 April 2020. The types of compensation an injured employee is entitled to is governed by the Workers Compensation Act 1987 (NSW) (the “1987 Act”). In her claim before the insurer, the plaintiff sought payments for two heads of compensation available under that Act:

   1. (1)

      Weekly payments due to the plaintiff’s total or partial incapacity to work following the injury (s 33 of the 1987 Act).

   2. (2)

      Compensation for costs associated with reasonable medical treatment arising from the plaintiff’s injury (ss 59 and 60 of the 1987 Act).

2. [7]

   Her claim was provisionally accepted on 4 May 2020 and the insurer commenced weekly payments to the plaintiff to compensate for the two types of loss alleged.

3. [8]

   However, on 16 December 2020, iCare issued a Notice to the plaintiff in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the “1998 Act”). The s 78 Notice is a formal mechanism whereby an insurer notifies a claimant that it is disputing its liability to compensate.

4. [9]

   iCare informed the plaintiff it was of the opinion she was not entitled to compensation for either of the two claimed heads of loss based on the following reasons:

5. [10]

   iCare informed the plaintiff that it would cease making any further payments from 12 January 2021.

6. [11]

   The rejection of the plaintiff’s entitlement to compensation was based upon the medical opinion of Dr Wallace, an orthopaedic surgeon. The substance of his opinion was described in the s 78 Notice as follows:

7. [12]

   On 15 January 2021, the plaintiff sought an internal review of iCare’s s 78 Notice. Although the reviewer agreed that the plaintiff was entitled to a slight adjustment to the date upon which payments would cease (which is not relevant to these proceedings), the ultimate position was maintained. Namely, iCare’s rejection of any entitlement by the plaintiff to compensation because:

The Dispute is Brought Before the Personal Injury Commission

1. [13]

   In addition to seeking internal review, the plaintiff also made an external application to the Personal Injury Commission of NSW (the “Commission”) pursuant to s 288 of the 1998 Act. That application was a standard form document titled “Application to Resolve a Dispute”. It sought to obtain resolution of the dispute between her and the first defendant with respect to entitlement to compensation.

2. [14]

   The application was amended on 24 January 2022 by consent of the plaintiff and the first defendant. The pre-amended version of the s 288 application is not relevant to these proceedings.

3. [15]

   The injury which was the subject of the application to the Commission (following amendment) was particularised in the following terms:

4. [16]

   Further, the issues that both the first defendant and the plaintiff sought the Commission to resolve related to the plaintiff’s entitlement to two forms of compensation under the 1987 Act. Notably, one of the forms of compensation now being disputed differs to the forms of compensation sought in the original claim before iCare. The two disputed heads of compensation before the Commission were as follows:

   1. (1)

      Whether the plaintiff was entitled to lump sum compensation based upon the degree of whole person impairment she suffered from the 10 April 2020 injury. If so, how much compensation was she entitled to by reference to the degree (percentage) of whole person impairment resulting from that injury.

   2. (2)

      Whether the plaintiff was entitled to weekly compensation due to her total or partial inability to work due to the 10 April 2020 injury.

5. [17]

   Consideration of the second issue was postponed until after determination of the first issue. Further, the second issue was not before the Panel and is, therefore, not relevant to this judicial review which is the basis of the Amended Summons.

Referral by the Commission to a Specialist for Medical Assessment

1. [18]

   To resolve the question of the degree of whole person permanent impairment, the Commission referred the case for medical assessment to Dr Mastroianni, the Medical Assessor, in accordance with ss 319 and 321 of the 1998 Act.

2. [19]

   The procedural and substantive requirements of this medical assessment, as well as the subsequent appeal to the Panel, are all governed by legislation. Hence, it is helpful to first set out the statutory regime concerning medical disputes in the context of compensation for permanent impairment, prior to examining the actual decisions of the Medical Assessor and the Panel.

The Source of A Worker’s Right To Recover For Permanent Impairment: The 1987 Act

1. [20]

   Under the 1987 Act, a worker who has received an injury is entitled to receive compensation, in accordance with the Act, from their employer (s 9(1)). An injury is defined in s 4(a) as “a personal injury arising out of or in the course of employment”.

2. [21]

   Where that “personal injury” sustained has the quality of being permanent, one of the forms of compensation recoverable under the Act is for non-economic loss. Whether the worker is entitled to receive this type of compensation is determined in accordance with s 66 of the 1987 Act. That provision reads as follows:

3. [22]

   The nature of workplace injuries captured by the operation of s 66 was examined by the Court of Appeal in Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178. In that case, Sackville AJA, who concurred with the leading judgment of Payne JA, made the following observation at [107] (extracted so far as relevant):

4. [23]

   Therefore, s 66, in effect, compensates where an injury sustained in the course of employment reduces a person’s capacities or ordinary functioning indefinitely to a sufficient degree.

Procedure For Resolving Medical Disputes: The 1998 Act

1. [24]

   Where there is a dispute between the worker and employer (as is the case here) concerning the degree of permanent impairment, if any, arising from a workplace injury, this is to be resolved in accordance with the procedure set out in Pt 7 of Ch 7 of the 1998 Act.

2. [25]

   In summary, a “medical dispute” before the Commission (which included a dispute concerning the degree of permanent impairment: s 319) will be referred to a medical specialist (s 321). That specialist will then assess the degree of whole person impairment in accordance with s 322 (extracted here so far as relevant):

3. [26]

   The critical part of the Workers Compensation Guidelines (“the guidelines”) which set out the applicable method for assessing the degree of impairment, per s 322(1), reads as follows: [2]

4. [27]

   Importantly, and subject to the right of appeal, the medical assessment by the specialist is only allowed to be made once, per s 322A of the 1998 Act, as follows:

5. [28]

   Furthermore, as indicated in the guidelines quoted above, pre-existing injuries are to be taken into account in a determination of the extent of whole person impairment:

6. [29]

   In conducting the assessment of the dispute, the assessor has the following powers:

7. [30]

   After the assessment in accordance with s 322 of the 1998 Act, the Medical Assessor will then issue a Certificate pursuant to s 325 concerning permanent impairment (the “s 325 Certificate”). This Certificate is taken as conclusive evidence of, inter alia, the extent to which a person’s functioning has been impaired and the degree the impairment is attributable to the referred injury:

8. [31]

   It is possible to appeal the outcome of the first instance medical assessment, as outlined in the s 325 Certificate, to an Appeal Panel. However, the scope of the appeal is limited by operation of s 327 of the 1998 Act:

9. [32]

   The applicable procedure for the appeal process is set out in s 328, which empowers the Panel to either confirm the original decision, as evidenced on the s 325 Certificate, or revoke that decision and issue a revised one:

THE MEDICAL ASSESSMENT OF DR MASTROIANNI

1. [33]

   In accordance with s 322 the Medical Assessor assessed the plaintiff on 9 March 2022 and issued a s 325 Certificate on 11 March 2022. His decision was based upon his own discussion with the plaintiff, a physical examination and numerous medical reports of other practitioners.

2. [34]

   The Medical Assessor determined that the percentage of whole person impairment in each of the injured areas was 12% (lumbar spine), 4% (left knee) and 1% (scarring) respectively. However, with respect to the spine and knee injuries, he determined that one-tenth of the damage was attributable to “pre-existing injury, conditions or abnormalities” (see s 323(2)). Accordingly, the percentage of whole person impairment attributable solely to the 10 April 2020 incident was 11% (lumbar spine), 4% (left knee) and 1% (scarring), meaning the incident amounted to a total of 16% of whole person impairment.

3. [35]

   The degree of permanent impairment is a reference to “whole person impairment”, or the degree to which person has suffered a reduction in their total physical capacity, determined by reference to a prescribed formula, when all injuries flowing from the 10 April 2020 incident are viewed in combination. [3]

4. [36]

   The Medical Assessor’s findings are recorded in the Table attached to the s 325 Certificate, extracted below:

5. [37]

   The Table along with six pages of discussion accompanied the findings. The substance of these six pages included a discussion of the available evidence; a discussion of the history relating to the injury; findings from the physical examination and details of investigations into the injury performed by other medical professionals. However, none of this discussion was ultimately relevant to the Panel’s decision and, therefore, does not require repeating for the purpose of the Amended Summons. The relevant parts of the Medical Assessor’s discussion which were critical to the appeal to the Panel are extracted in full below, in accordance with the order in which those sections appeared in the reasons attached to the s 325 Certificate.

6. [38]

   First the Medical Assessor gave a summary of the injury in the following terms:

7. [39]

   The following “evaluation of permanent impairment” was given in accordance with the standard-form questions set out in the guidelines:

8. [40]

   The following reasoning was given to explain how the Medical Assessor had arrived at his conclusions or calculations concerning permanent impairment:

9. [41]

   In the “reasons for assessment” section, the Medical Assessor also commented on the medical opinions of other doctors who had reviewed the plaintiff, as follows:

10. [42]

    The last point of the “reasons for assessment” section, involved affirming that “the impairment is permanent and that the degree of permanent impairment is fully ascertainable”.

11. [43]

    Also of note was the deduction for pre-existing injuries or conditions, which was already briefly touched upon in the “reasons for assessment” section of the Certificate. It read as follows:

12. [44]

    The last sentence of the above extract demonstrates the Medical Assessor opted to apply the default statutory deduction of 10%, pursuant to s 323(2), in circumstances where he believed that taking into account the degree of impairment attributable to earlier injuries/conditions was difficult to ascertain.

THE FIRST DEFENDANT’S APPEAL AGAINST THE MEDICAL ASSESSOR’S DECISION TO THE PANEL

1. [45]

   In accordance with ss 327(c) and (d), the first defendant appealed to the Panel on the following grounds:

2. [46]

   These grounds were supplemented with the following particulars:

3. [47]

   Hence, it is apparent that the critical error in the Medical Assessor’s decision, from the perspective of the first defendant, was taking into account the 2019 injury in combination with the 10 April 2020 injury in determining the degree of permanent impairment under s 322 for which the first defendant was to be held liable. In essence, it was contended that, because the Medical Assessor recognised the 2019 incident as “an injury a year earlier at the same place of employment”, the Medical Assessor presumed it was permissible to similarly hold the first defendant responsible for the damage of this incident as well. However, the first defendant contended this was beyond the permissible scope of the assessment by the Medical Assessor, charged solely with the responsibility of determining the degree of whole person impairment which arose solely from the 10 April 2020 incident.

4. [48]

   Furthermore, the first defendant suggested that the Medical Assessor, in doing so, erred because, in viewing the 2019 incident in combination with the 10 April 2020 incident, this meant the deduction under s 323 was not applied correctly. This is because no deduction was given to account for the extent of pre-existing damage that was attributable to the 2019 incident that was not the subject of the referral, despite s 323 mandating that course.

THE REVIEW OF THE MEDICAL ASSESSOR’S DECISION BY THE PANEL

1. [49]

   The Panel’s decision commenced with a brief summary of the procedural history and a statement to the effect that it was satisfied that at least one of the grounds of appeal had been made out.

2. [50]

   Next, various preliminary matters were addressed, including the Panel’s decision that it did not believe it necessary to conduct another medical examination of the plaintiff, despite error having been demonstrated, as the material before it was sufficient to make a new determination.

3. [51]

   Other preliminary matters included observing that the evidence before it was identical to what was before the Medical Assessor and that it had taken such evidence into account. The Panel also stated that the parties’ written submissions “are not repeated in full [in the reasons], but have been considered” and re-stated the grounds and particulars of the appeal (set out at [45]–[46] above).

4. [52]

   The Panel then recited the Medical Assessor’s decision in its entirety (which need not be repeated).

5. [53]

   The Panel then gave reasons to the effect that the appeal was allowed as the Medical Assessor had erred. It was of the opinion the amount deducted for under s 323 was “at odds” with the available evidence. In the result, the Panel reissued a decision on that basis. The reasons for this were as follows:

6. [54]

   Based on this finding of error and that that greater weight needed to be attributed to already damaged condition of the lumbar spine which existed prior to the 10 April 2020 incident, the Panel issued a new Certificate:

7. [55]

   The effect is that, after taking into account any “deduction[s] for previous injury or pre-existing condition or abnormality”, in accordance with s 323 of the 1998 Act, the Panel determined that the degree of permanent injury solely referable to the 10 April 2020 incident became 6% (lumbar spine), 4% (left knee) and 1% (scarring) respectively. Therefore, the degree of whole person impairment when the three injuries were considered in combination was 11%. This amounted to a 5% reduction of the original percentage proposed by the Medical Assessor of 16%. The outcome being that the extent of non-economic loss damages recoverable by the plaintiff from the first defendant/insurer by reason of suffering permanent impairment would be considerably reduced.

PROCEDURAL HISTORY AND CHANGES TO THE GROUNDS OF THE SUMMONS

1. [56]

   Prior to outlining the grounds for judicial review of the Panel’s decision, it is important to note there was some procedural complexity involved in refining the grounds of the Amended Summons. The history of such can be conveniently summarised as follows.

2. [57]

   The original Summons was filed on 15 November 2022 seeking judicial review of the Panel’s decision. The plaintiff’s grounds for disputing that decision were articulated in the following terms:

3. [58]

   The plaintiff sought a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) with an order in the nature of certiorari that the Panel’s decision is void and of no effect. The plaintiff also sought an order setting aside the Panel’s decision and remitting it back to a differently constituted Medical Appeal Panel according to law.

4. [59]

   As became apparent in the first hearing for this matter on 28 June 2023, the grounds of appeal set out in the original Summons required amendment.

5. [60]

   First, the Court raised with the plaintiff that Ground 3, as it appeared in the Summons, required rearticulating as it “fell short” of accurately capturing the “purport” of the oral argument being put forward by the plaintiff.

6. [61]

   The other difficulty in Ground 3 was its mischaracterisation of the appropriate cause of action. It was expressed as an error of law on the face of the record. However, the flaw that Ground 3 sought to address was that the Panel’s findings were “beyond the power of a medical appeal panel to adjudicate upon”. Therefore, the error alleged is a jurisdictional one, whereby the Panel exceeded the powers granted to it by the Parliament, through the 1998 Act: see Craig v South Australia (1995) 184 CLR 163, at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

7. [62]

   After these shortfalls were raised with the plaintiff during the hearing, the plaintiff sought leave to amend that ground. The proposed Amended Summons was received by the Court on 5 July 2023. The newly drafted version of Ground 3 was in the following terms:

8. [63]

   Following receipt of the proposed amendment, a second hearing was conducted on 14 July 2023 to ascertain the suitability of the revised articulation of Ground 3. The defendant agreed to the amendment provided, leave was granted by the Court to enable both the plaintiff and the first defendant to develop supplementary written submissions, limited to arguments in support of the newly drafted Ground 3. Leave was granted on that basis. Those submissions were made in writing and orally. They are reflected in the summary of submissions below.

9. [64]

   With respect to the other three grounds (see [57] above), Grounds 1 and 2 remained unchanged. However, counsel for the plaintiff advised Ground 4 was no longer pressed and, therefore, will not be considered in this judgment.

DISPOSITION OF THE APPEAL

1. [65]

   I shall deal with each ground of appeal seriatim.

Ground 1: Jurisdictional Error or In The Alternative A Constructive Failure To Exercise Jurisdiction By Engaging Conduct Whereby The Second Defendant Did Not Meaningfully Engage With The Opposition To The Appeal And The Submissions Made By The Plaintiff In Writing.

1. [66]

   The plaintiff based this ground of appeal upon how the Panel dispensed with the plaintiff’s submissions.

2. [67]

   First, instead of attempting to explain what the plaintiff’s arguments were, in the form of some summary or the like, the Panel simply noted that submissions of the parties “are not repeated in full, but have been considered.”

3. [68]

   Beyond this, the only discussion of the plaintiff’s arguments that appeared throughout the Panel’s decision was to state the obvious, namely, that the plaintiff did not agree with either of the first defendant’s grounds of appeal (which are outlined at [45] above):

4. [69]

   Based upon this very limited engagement, it was submitted that the “appeal panel has [not] responded” to any of the plaintiff’s “clearly articulated arguments based on the established facts.” The plaintiff gave the example that the Panel did not address in any substantive way her submissions on causation, which, relevantly, is now the focal point of Ground 3 in this Summons.

5. [70]

   This was contrasted with the attention given to the first defendant’s arguments before the Panel, as alleged by the plaintiff in oral submissions:

6. [71]

   In failing to respond to the plaintiff’s “clearly articulated arguments”, it was contended that this amounted to a failure to make an assessment which grappled with the substantive case presented before it, and in turn, a constructive failure of the Panel to perform its statutory task.

7. [72]

   In support of this argument the plaintiff cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496; [2003] HCA 26 (“Dranichnikov”), where Gummow and Callinan JJ said the following in determining that there had been a constructive failure to exercise jurisdiction (at [24]):

8. [73]

   The plaintiff also cited a similar passage in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 (“Ex Parte Miah”) at [81], where Gaudron J said words to a similar effect:

9. [74]

   Despite the limited degree of engagement with the plaintiff’s arguments by the Panel, the defendant submitted that the Panel’s reasons considered all essential matters for determination and, therefore, there was no constructive jurisdictional failure.

10. [75]

    The defendant emphasised that interpreting the rule in Dranichnikov too broadly is not without consequence. Assessing whether and to what extent an executive decision maker grapples with each argument made before it encroaches on an investigation into the merits of the decision: Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 (per Kirk JA at [15]) (“Ming”).

11. [76]

    In order for the failure to address an argument to mean that there has been a constructive failure to exercise its jurisdiction, that argument “must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power”: Ming at [15] (Kirk JA).

12. [77]

    The defendant opined that the only issue of importance put forward by the plaintiff in her submissions to the Panel was the submission that the Medical Assessor’s reasoning was correct, and therefore, the original s 325 Certificate should stand. The defendant alleged this issue was addressed simply by the way that the Panel set out the Medical Assessor’s decision at length and outlined why it was wrong:

13. [78]

    On this basis, the defendant submitted that there was no constructive failure to exercise jurisdiction.

14. [79]

    The plaintiff relied upon passages from the High Court decision of Dranichnikov and Ex Parte Miah to advance the contention of constructive failure to exercise jurisdiction failure by reason of the Panel’s non-engagement with the plaintiff’s submissions.

15. [80]

    Dranichnikov involved judicial review of a decision of the Refugee Review Tribunal where a Russian citizen sought a protection visa under the Migration Act 1958 (Cth). In order to obtain such he was required to demonstrate to the Tribunal that he was a refugee in accordance with the Convention Relating to the Status of Refugees (entered into force 22 April 1954), namely, he had to demonstrate that he had “[a] well founded fear of prosecution [in Russia] for reason of … membership of a particular social group”. In an application for prerogative relief pursuant to s 75(v) of the Constitution 1901 (Cth), the High Court determined that the Tribunal’s reasons demonstrated a constructive failure to exercise the jurisdiction conferred under the Migration Act.

16. [81]

    The basis of this finding was that the Tribunal misconstrued the applicant’s submissions with respect to the social group to which he belonged. The Tribunal found the group to which the applicant belonged was ‘business people’, and this was no basis for qualifying for refugee status as the Tribunal “did not accept that there is evidence to suggest there is general persecution of businessmen in Russia”. However, the High Court determined this failed to address his actual concern, in that not only was he a member of the business community, but a subset of that community who engaged in public protest against state sanctioned corruption and organised crime. Therefore, the submission that went to the heart of the issue before the Tribunal was misconstrued.

17. [82]

    Ex Parte Miah similarly involved an application for a protection visa, although concerning a Bangladeshi citizen. The mistake which gave rise to a constructive jurisdictional failure was that the delegate to the Minister of Immigration, as evidenced on the reasons given, misunderstood the permissible considerations relevant to an assessment as to whether Mr Miah “had a well-founded fear of persecution” (Gleeson CJ and Hayne J at [1]).

18. [83]

    The delegate did not engage with the submissions put forward by the applicant in explaining why he, personally, had a well-founded fear of being subjected to persecution, namely, because he himself had been the target of historical attacks by Islamic fundamentalists.

19. [84]

    By failing to consider such submissions Gleeson CJ, Gaudron J, McHugh J, Kirby J, Hayne J inferred the delegate misunderstood that circumstances peculiarly effecting an individual, not necessarily shared by other members of society, could be a relevant consideration to the assessment of refugee status:

20. [85]

    Both these cases reflect the substance of what amounts to a constructive failure to exercise jurisdiction, as observed by Gaudron J in Ex Parte Miah at [80] (footnotes omitted):

21. [86]

    It follows that in order to determine whether or not the Panel has misunderstood or misapplied its powers such that a constructive jurisdictional failure has occurred, it is necessary to construe the relevant provisions of the 1998 Act which outline the task the Panel was required to perform.

22. [87]

    Prior to embarking on this enquiry, however, it should be emphasised that, plainly, the plaintiff’s submissions failed to adequately grapple with the statements in Dranichnikov and Ex Parte Miah. In effect, the plaintiff argued there was a constructive failure where the Panel did not engage with each of her submissions adequately because they were “simply noted”. However, this wrongly conflates the principles in Dranichnikov and Ex Parte Miah with some box-ticking exercise. The only real issue is whether, by not sufficiently engaging with a submission on behalf of the plaintiff, the Panel in turn misunderstood, misapplied of failed to exercise the power conferred upon it under the statute.

23. [88]

    The provisions of the 1998 Act applicable to the Panel’s decision in this case may be summarised as follows. A determination of a Medical Assessor, encapsulated in a s 325 Certificate and accompanying reasons (325(2)(c)), is appealable to the Panel solely on the grounds listed under s 327(3) and only concerning findings of the Medical Assessor which are “conclusively presumed to be correct” in later proceedings, listed under s 326 (see s 327(2)). further, the scope of the review made by the Panel is “limited to the grounds of appeal on which the appeal is made” (328(2)). Finally, the Panel can either “confirm the certificate of assessment” or “revoke that certificate and issue a new certificate” (s 328(5)).

24. [89]

    Here, the grounds of appeal elected in accordance with s 327(3) were twofold. First, that the assessment was made on the basis of incorrect criteria, and, secondly, the medical certificate contained demonstrable error. The finding “conclusively presumed to be correct” being disputed, was the Medical Assessor’s finding concerning the “degree of permanent impairment […] as a result of an injury” which was calculated having regard to deductions for any “proportion of permanent impairment is due to any previous injury or pre-existing condition”.

25. [90]

    In light of the provisions summarised briefly above, there would be no constructive failure to exercise jurisdiction if the Panel met the following requirements, as evidenced by the reasoning it gave attached to the reissued s 325 Certificate:

    1. (1)

       Correctly turned its mind to and understood these two grounds concerning demonstrable error and incorrect criteria infecting the Medical Assessor’s decision with respect to the appropriate deduction.

    2. (2)

       Did not consider any other grounds upon which the Medical Assessor could have erred in its review.

    3. (3)

       Understood the submissions of the parties which went to the heart of these grounds.

    4. (4)

       Gave an opinion concerning the validity of the Medical Assessor’s deduction based upon the grounds of error as alleged.

    5. (5)

       Either affirmed the original s 325 Certificate or revoked the Certificate and reissued a new Certificate based upon the antecedent decision of whether or not the Medical Assessor erred.

Conclusion with respect to Ground 1

1. [91]

   Before the Panel, the heart of the defendant’s allegation of error was that the Medical Assessor improperly included the 2019 incident, being another injury also sustained during the same tenure of employment, in making the finding with respect to the degree of the whole person impairment that the employer (and therefore the insurer) was liable to compensate for (16% after the deduction). This was despite the fact that the 2019 incident was not the injury which was the subject of the referral. It was submitted that in so taking the 2019 incident into account for the purpose of this assessment, the finding of degree of permanent impairment “as a result of” the referred injury, was incorrect.

2. [92]

   The plaintiff sought to contradict this submission by alleging that the Medical Assessor was required to consider the 2019 injury in applying the s 323 deduction, and, therefore, “any assertion by the appellant that the Medical Assessor erred by assessing the impact of the previous 2019 injury […] is inconsistent with the assessment required by s 323”.

3. [93]

   This is the substantive contest that was before the Panel which required resolution such that the Panel would deliberate on the grounds of the appeal in proper exercise of its statutory task.

4. [94]

   In my view, nothing from the Panel’s reasons demonstrate a misunderstanding, misapplication or failure to perform an element of the statutory task it was required to perform by virtue of some failure to engage with the plaintiff’s submissions on this point or any other. In substance, it was the plaintiff who seemed to be under a misapprehension with respect to what task the Medical Assessor was required to perform.

5. [95]

   The plaintiff misconstrued the (correct) argument put forward by the defendant to the Panel. It failed to appreciate the fundamental distinction between the Medical Assessor considering the impact of the 2019 incident for the purpose of making a deduction, as required under s 323, as opposed to the Medical Assessor impermissibly taking into account the 2019 incident jointly with the referral injury in assessing the degree to which the employer should be held liable to compensate for whole person impairment.

6. [96]

   In other words, the 2019 incident was only permitted to be considered by the Medical Assessor so far as it was relevant to making a deduction, or reducing the degree of liability of the employer, in making a finding that a certain degree of the impairment to the lumbar spine could not be a result of the referral incident, because it was caused by the 2019 incident.

7. [97]

   The 2019 incident could not be considered jointly with the referral incident, notwithstanding that it may have also occurred whilst the plaintiff was working for the defendant as a disability support worker. The effect of that was that it would be holding the employer liable to compensate the plaintiff for a proportion of impairment to the lumbar spine that was caused by an incident that the Commission has not previously found arose “out of or in the course of [the plaintiff’s] employment”, giving rise to liability of the employer (ss 4 and 9 of the 1987 Act).

8. [98]

   The acceptance of the first defendant’s argument on this point, and the implicit rejection of the plaintiff’s, was articulated in the following statement of the Panel’s reasons:

9. [99]

   In circumstances where the critical argument of the plaintiff before the Panel amounted to a mischaracterisation of the Medical Assessor’s function, not addressing the plaintiff’s submission, can be taken to simply be seen as a recognition of the fact that the plaintiff’s argument in this respect was so clearly lacking in merit that it did not require rebuttal. In any event, there can be no misunderstanding of the Panel’s proper exercise of statutory power here, by virtue of not responding to a submission, when that submission was misplaced.

10. [100]

    There is no constructive failure to exercise jurisdiction. The ground is dismissed.

Ground 2: Denying the Plaintiff Procedural Fairness in determining the Deductions made pursuant to s 323 Of The Workplace Injury Management And Workers Compensation Act 1998 (NSW) without Adequate Reasoning or any Reasoning

1. [101]

   The plaintiff alleged that the Panel’s reasoning, which sought to justify the revised deduction of one-half to account for pre-existing injuries pursuant to s 323, was inadequate.

2. [102]

   The basis of this submission was that the Panel considered the existence of prior injuries and/or conditions and then went straight on to presume that these pre-existing injuries warranted deduction. The Panel then made the finding that “the available evidence is at odds with a deduction of one-tenth. Rather, the available evidence supports a deduction of one-half.”

3. [103]

   The plaintiff contended that, in doing so, no actual methodology was put forward which outlined why that proportion of the deterioration to the lumbar spine was more appropriate than the original proportion put forward by the Medical Assessor.

4. [104]

   Furthermore, the plaintiff emphasised that the Panel failed to comply with judicial statements advanced in cases like Ryder v Sundance Bakehouse & Tea Rooms [2015] NSWSC 526 at [45] (“Ryder”). Campbell J in Ryder said that what was required under s 323, in applying a deduction, was that the Panel needs to demonstrate that the plaintiff’s injury to her lumbar spine would not have been as great but for the pre-existing condition. Otherwise, it is not possible to say that some degree of the impairment is attributable to the pre-existing injury. Counsel for the plaintiff made the following written submission:

5. [105]

   The first defendant agreed with the submission that the Panel was required to demonstrate a difference of outcome to the damage to the lumbar spine in the absence of the pre-existing condition. It accepted that the decisions of Ryder at [45] and Bos v East Coast Security Dogs Pty Ltd [2022] NSWSC 1282 at [39] were good authority.

6. [106]

   However, the effect of the defendant’s argument was that a finding of a “difference of outcome” was implied in the Panel’s reasoning, which noted that the subsequent injuries had an aggravating effect on the degenerative condition of the lumbar spine.

7. [107]

   Finally, the defendant emphasised that the requisite degree of reasoning necessary, where the Panel is basing its decision on expert medical opinion, is not a high threshold to surpass. It relied upon the decision of Basten AJ in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [45] (“Foxtel Management”):

Consideration Ground 2 – Insufficient Reasons

1. [108]

   As is clear from the plaintiff’s submissions, this ground concerned a contention as to inadequate reasoning. Those submissions were directed to how the Panel exercised its power in accordance with s 328(5), namely, deciding to revoke the original s 325 Certificate, which provided for a deduction of one-tenth for any “previous injury or pre-existing condition or abnormality” and issue a new one with a revised deduction of one-half.

2. [109]

   Unlike the original assessment of the Medical Assessor, there was no express statutory obligation for the Panel to give reasons when making this assessment afresh. Nonetheless, an obligation arises at general law, and the scope of this obligation is captured by what the High Court said in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (“Wingfoot”): see Foxtel Management at [45].

3. [110]

   Further, the application of the decision in Wingfoot to a decision made by a Medical Appeal Panel exercising its powers under Pt 7 Ch 7 of the 1998 Act (as has occurred here) was considered in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (“Campbelltown City Council”) and Foxtel Management.

4. [111]

   In Wingfoot the High Court (French CJ, Crennan, Bell, Gaegler and Keane JJ) said the following at [54] and [55]):

5. [112]

   Further, Basten JA said the following in Campbelltown City Council at [121]:

6. [113]

   However, as was noted by Basten AJ in Foxtel Management, the extent of the obligation to give reasons will typically be less onerous where such decisions are based upon medical expertise:

7. [114]

   Based upon these authorities, the plaintiff’s submission that the Panel’s decision to reverse the original deduction of one-tenth and impose a one-half deduction in lieu lacked adequate reasoning is plainly wrong for the following reasons:

8. [115]

   First, I do not agree that the Panel failed to provide any explanation for its preference of one conclusion (being the one-half deduction) over another (the default one-tenth deduction) and therefore did not meet the requirement articulated in Campbelltown City Council at [121].

9. [116]

   The Panel noted how a 2019 CT scan was “not referred to by the MA” in his reasons, although the Panel relied upon this scan extensively in its opinion. This is despite the fact that such evidence would have been before the MA, as the brief of evidence was identical.

10. [117]

    The fact that the Panel considered different parts of the evidence when forming its opinion is significant because it provides a rational basis upon which the Panel thought it was appropriate to depart from the original decision of the MA. As will become evident, this 2019 CT scan was fundamental to the different opinion held.

11. [118]

    Secondly, the plaintiff emphasised that there was a mistake akin to that of the one in Ryder, where the following was said concerning the lack of reasons in applying a deduction in accordance with s 323 (extracted again for ease of reference):

12. [119]

    In application of this principle, Campbell J went onto explain why the Medical Appeal Panel failed in that case on the basis of insufficient reasons:

13. [120]

    By way of contrast to Ryder, I accept the defendant’s submission that a finding of difference in outcome is implicit in the reasons given here. The Panel recognised that the 10 April 2020 incident aggravated the degenerative condition of the lumbar spine. This necessarily connotes that there would be a different degree of damage absent this incident as it worsened the pre-existing condition. Importantly, this finding of a worsening effect is an aspect of reasoning which Campbell J expressly noted was missing in the medical panel’s reasons in Ryder, resulting in error (see emphasis in italics above).

14. [121]

    Thirdly, the finding, that the April 2020 frank incident aggravated the condition of the lumbar spine, did not appear in a vacuum. There was an explicit comparison of the condition of the lumbar spine both before and after the April 2020 incident, as evidenced by the June 2019 CT scan prior to the incident (which was not considered by the Medical Assessor in giving the original opinion) and a June 2020 MRI (following the referral incident) upon which the conclusion of aggravation was based.

15. [122]

    Without attempting to discern the medical meaning of the findings of investigations, a matter peculiarly for medical expertise, the reasoning adopted by the Panel clearly indicates that, due to certain conditions being found and/or exacerbated in the post-referral injury investigations which were absent or less serious in pre-referral injury investigations, the 10 April 2020 incident changed the condition of the lumbar spine. The Panel stated:

16. [123]

    The relevance of the Panel itself having engaged in comparison of these investigations is it provides a stated evidential basis to support a conclusion of aggravation. The opinion of significant aggravation cannot therefore be characterised as being “devoid of support in the material”: Foxtel Management at [45].

17. [124]

    Finally, the Panel noted that, based upon the radiological investigations of 2019 viewed in combination with the post-referral injury investigations, the ultimate contributor to arthropathy in the L4/5 and LS/S1 facet joints was the degenerative condition:

18. [125]

    In so acknowledging that the causal source of the damage to the lumbar spine was ultimately the degenerative condition, this again provides a logical basis to conclude that merely deducting for one-tenth cannot be reconciled with the medical evidence.

Ground 3: Committing a jurisdictional error by forming an opinion [27]-[30] as part of the formation of the opinion as to whole person impairment and correcting error, by concluding that the plaintiff suffered aggravations from 2 unreferred injuries being opinions as to liability which was beyond the jurisdiction of the Medical Appeal Panel.

1. [126]

   The plaintiff submitted that jurisdictional error arose from the Panel’s twofold finding that:

   1. (1)

      The plaintiff suffered from two other injuries (or, more aptly, one degenerative condition and acute injury) which were distinct from the injury which was the subject of the referral (the 10 April 2020 injury), namely, “chronic underlying degenerative changes” to her spine, and an “injury to her back in 2019”, and;

   2. (2)

      The effect of each of the three injuries (the degenerative changes; the 2019 incident; and the referral injury), was that each contributed to, and sequentially aggravated the impairment to the lumbar spine.

2. [127]

   Making these findings, it was contended, involved the Panel erroneously engaging in an assessment of “causation” or “liability” by asking what incidents and/or conditions were responsible for the deterioration of the lumbar spine.

3. [128]

   The error, as contended by the plaintiff, was that asking questions of liability exceeded the scope of the Panel’s inquiry, which was confined to making a deduction. The plaintiff based this submission on the premise that the Commission is the sole repository for determining liability, or questions as to whether the workplace incident was the cause of the injury to the spine, or whether the spinal injury arose out of something entirely different. The plaintiff relied upon Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 (“Jaffarie”) to support this submission.

4. [129]

   In other words, a causal connection between the 10 April 2020 incident and the impairment of the lumbar spine was already concluded and engaging in any line of questioning which may jeopardise such a conclusion was beyond the scope of the Medical Assessor’s, and by extension, the Panel’s, task.

5. [130]

   The first defendant submitted that the Panel did not exceed its jurisdiction in considering the aggravating effect of the non-referred injuries.

6. [131]

   First, evidence of the degenerative condition and the 2019 injury appeared in the briefs before both the Medical Assessor and the Panel. They both had the advantage of making their respective decisions on the same material. They were, therefore, part of the dispute, the scope of which is “crystalised in documents attached to [the application to resolve a dispute] which was referred for assessment in accordance with the statute”: citing Leeming JA in Skates v Hills Industries Ltd [2021] NSWCA 142 at [49]. Those respective medical facts could, therefore, be taken into account in the decision making process.

7. [132]

   Secondly, and more significantly, the first defendant put that the Panel only undertook enquiries which were both relevant and necessary to the task of, firstly, assessing whether the Medical Assessor failed to correctly deduct for pre-existing injuries in accordance with s 323 of the 1998 Act, and, secondly, upon making such a finding of error, consider the process of deduction afresh. This was based upon the following reasoning:

   1. (1)

      The Panel did not interfere with the findings of the assessor with respect to the extent of 17% whole person impairment (12% lumbar spine; 4% left lower extremity; 1% scarring).

   2. (2)

      The only question that was considered by the Panel was whether the deduction of one-tenth under s 323(2) was appropriate (which is the default where the Medical Assessor considers making a precise deduction is too difficult or costly to ascertain), when considering what proportion of this 17% of damage ought to be attributed to pre-existing injuries and/or conditions based upon the medical evidence. It found the deduction of one-tenth, in relation to the 12% of whole person impairment referable to the lumbar spine, was “at odds” with the evidence.

   3. (3)

      Accordingly, to reissue the Certificate the Panel needed to consider the question of the appropriate deduction for the purpose of s 323 of the 1998 Act. This necessarily involved considering whether the damage to the lumbar spine was a result of, or caused by, any other injury or condition suffered by the plaintiff, and if so to what extent. Asking this question was not an impermissible consideration of issues of ‘liability’, in usurpation of the powers of the Commission.

Consideration Ground 3

1. [133]

   Although a submission was made on behalf of the defendant, which sought to assert that the 2019 incident and the degenerative condition were permissible considerations for both the Medical Assessor and the Panel in making their respective assessments, I do not consider that this point was ever really contested.

2. [134]

   Plainly, that evidence was in the brief before both the Medical Assessor and the Panel, and therefore fell within the scope of the dispute: Skates v Hills Industries Ltd [2021] NSWCA 142 at [49]. For the plaintiff to assert that evidence must not be considered, would be to contradict her own submissions, which conceded those pre-existing injuries/conditions could be taken into account for the purpose of a s 323 deduction.

3. [135]

   Further, it is not in dispute that the Panel did, in fact, consider the causal relationship between non-referred injuries and the impairment to the lumbar spine. Such is clear, for example, from the Panel’s finding that the ultimate cause of spinal injury was a degenerative condition, which was aggravated by the 2019 incident.

4. [136]

   What was effectively in dispute is whether, in so considering this causal nexus between the impairment of the lumbar spine and the non-referred 2019 incident and the degenerative condition, the Panel exceeded the jurisdiction granted to it under Pt 7 Ch 7 of the 1998 Act. In submissions propounded by the plaintiff, the making of such findings ought to have been left to the Commission, the proper repository of power for issues of “liability”.

5. [137]

   To determine the merits of this submission, it is necessary to assess the delineation of power as between the Personal Injury Commission and Medical Assessors (and, by default, the Medical Appeal Panel that reviews and, where necessary, reissues the Medical Assessors decision: s 328(5)) of the 1998 Act within the statutory framework of workers compensation laws, as derived from both the 1987 and 1998 Acts. This task must be undertaken with the intention of construing when, if ever, issues of causation or liability may be considered by a Medical Assessor (and, therefore, the Panel in reviewing that decision) in the proper exercise of its powers.

6. [138]

   Significantly, the Court of Appeal has already undertaken a task of this kind on several occasions: see Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449 at [35]; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [109]–[111]; and, Jaffarie.

7. [139]

   An apt statement for present purposes is the judgment of White JA (with Macfarlan and Leeming JJA agreeing) in Jaffarie, who cited with approval a summary of a principle given by Deputy President Roche of the Workers Compensation Commission: at [80]

8. [140]

   In my view, the judgment of White JA is clear authority to the effect that the plaintiff’s submission fails to appreciate the true delineation of power between the Commission and the Medical Assessor/Panel.

9. [141]

   In order to assess what degree of impairment to the lumbar spine is solely attributable to the referral injury, this necessarily involves considering whether any other proportion of the damage is referrable to, or caused by, some other incident, injury or condition. It follows that addressing issues of causation is a necessary incident of making deductions pursuant to s 323 of the 1998 Act. Hence, to assert that the Medical Assessor and Panel are prohibited from making these conclusions, being ones of factual causation pertaining to medical issues, would be incompatible with a substantive task the 1998 Act compels them to perform.

10. [142]

    The real issues of liability which the Panel is prohibited from taking into account are those concerning whether or not the employer should be liable to compensate the worker for a workplace incident. This involves assessments which involve factual and legal questions not based upon medical expertise. For example, whether or not the worker was injured in circumstances “arising out of or in the course of employment” (ss 4 and 9(1) of the 1987 Act). This is not what has occurred.

11. [143]

    This ground has not been made out.

CONCLUSION

1. [144]

   In the circumstances, the plaintiff has not established any grounds of appeal and accordingly the Amended Summons is dismissed.

ORDERS

1. [145]

   The orders of the Court are as follows:

   1. (1)

      The plaintiff’s Amended Summons is dismissed.