Aquilina v Transport for NSW

BRERETON JA: The plaintiff David Aquilina is a 63 year-old electrician who at all material times was in the employ of the first defendant Transport for NSW at its Mortdale maintenance centre in the Maintenance and Technical Section. On 16 August 2017, in the course of his employment when endeavouring to access a train he slipped down a step, twisting his foot and ankle. After a complicated course of treatment, in the course of which he acquired an injury to the lumbar spine, he obtained medical reports and made a claim on the first defendant under the Workers Compensation Act 1987 (NSW), s 66, for lump sum compensation for permanent whole person impairment attributable to the injuries to the lower left extremity and lumbar spine. The first defendant disputed that there was a related condition affecting the lumbar spine, and the extent of the whole person impairment due to the accepted ankle injury.

The extent of the plaintiff’s whole person impairment attributable to an injury is of importance in several respects. First, there is no right to lump sum compensation if it does not exceed 10%. Secondly, there is no right to bring a claim for work injury damages if it does not exceed 15%. Thirdly, the entitlement to weekly compensation and medical expenses expires at five years unless it is greater than 20%.

The plaintiff commenced proceedings in the then Workers Compensation Commission, and an arbitrator found that the lumbar injury was a work injury arising from the earlier ankle injury. The President of the Personal Injuries Commission thereupon referred the plaintiff to a medical assessor to assess the whole person impairment attributable to the ankle injury and the back condition. The medical assessor on 14 May 2021 issued a certificate certifying 6% whole person impairment attributable to the lower left extremity and 7% attributable to the lumbar spine, amounting to a total whole person impairment of 13%.

In his reasons, the medical assessor observed that there was a pre-existing osteochondral lesion of the left talar dome, and considered that the left ankle fracture was affected by that previous pre-existing condition. He continued:

The assessor then proceeded to assess the whole person impairment broadly as follows:

The plaintiff appealed under Workplace Injury Management Act 1988 (NSW), s 327(3)(c) and (d), on the grounds that the assessment was made on the basis of incorrect criteria and that the certificate contained a demonstrable error. The only matter the subject of complaint by the plaintiff in the appeal was the application by the assessor of Workplace Injury Management Act, s 323, in arriving at a deduction of 50% in respect of the osteochondral lesion as a pre-existing condition.

The second defendant is the appeal panel which dealt with that appeal. In its reasons, given on 10 September 2021, it accepted that the assessor’s reasons for adopting a 50% discount for the pre-existing condition were inadequate, and found that an appropriate allowance was 10%. [1] However, it did not accept the assessor’s allowance under Table 17-33 for the intraarticular fracture of 20% but applied a different methodology, using range of motion measurements, to conclude that there was a 14% lower extremity impairment (thus differing from the assessor’s finding that there was an intraarticular fracture attracting a 20% lower extremity impairment, which was not in dispute on the appeal to the panel) and a further 4% for the left sub-talar joint amounting to 18% which converted under Table 17-3 to 7% whole person impairment. By this route, the panel reached the same ultimate conclusion as the assessor.

The panel took that approach in reliance on the decision of Garling J in Drosd v Workers Compensation Nominal Insurer [2] , in which his Honour had said that a Medical Appeal Panel had a statutory obligation to apply the guides once it had determined to set aside a certificate and regardless of whether the point had been raised on appeal. However, in Queanbeyan Racing Club Limited v Burton [3] , Basten JA, with whom Leeming and McCallum JJA agreed, said that that statement was:

That is because s 328(2) of the Workplace Injury Management Act provides that the appeal is to be by way of review of the original medical assessment “but the review is limited to the grounds of appeal on which the appeal is made”.

It is clear on the authority of Queanbeyan that in proceeding to consider grounds other than those raised in the appeal to it, the panel exceeded its jurisdiction. All it was entitled to do was to correct the specific error which it found, and not to embark on exploration of some other error in the medical assessor’s decision, before issuing a new certificate. Having found that the appropriate allowance for the pre-existing condition was 10%, and not 50%, then the only course the panel could permissibly have taken was to set aside the original certificate and issue a new certificate adopting the other findings of the assessor but substituting a 10% for the 50% discount. The parties agree that had that course been taken, the assessed WPI would have been 15%, and it is unnecessary for me in those circumstances to set out with particularity the calculations that produce that result.

In those circumstances, the plaintiff seeks an order not merely remitting the matter to the panel, but directing the panel to issue a certificate certifying that the degree of permanent impairment is 15%. Section 69 of the Supreme Court Act 1970 (NSW) provides by sub-s (3)(b) that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a Court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings, jurisdiction to quash the ultimate determination of the Court or tribunal and, “if the Court determines that as a matter of law only one particular determination should have been made by the Court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.”

For the reasons I have given, the only determination which should have made by the appeal panel was a finding of 15% impairment and, accordingly, s 69(3)(b) is engaged.

The first defendant opposed an order that it pay the plaintiff’s costs, the second defendant and the third defendant President of the Personal Injury Commission having filed submitting appearances. Initially, the first defendant filed a response which opposed the relief claimed. Once the plaintiff’s evidence and submissions were served, it put on submissions which conceded the matters advanced by the plaintiff, save for the degree of impairment which it contended was 15% (as has now been accepted by the plaintiff), as opposed to 16% as was initially contended for by the plaintiff.

It is true that in those respects the first defendant has taken a responsible approach to the litigation and minimised the conflict, and it is also true that the matter would have had to come before the Court in any event because such relief cannot be granted merely by consent. It is also true that the error in question was that of the second defendant and not of the first defendant – but that can be said of many appeals in which the respondent is the beneficiary of an erroneous decision at first instance. It remains the fact that the first defendant has consistently, until it filed its submissions in these proceedings, opposed the plaintiff’s claim to have a whole person impairment assessment of at least 15%, and has done so in a way which has necessitated that, in order to sustain his claim, the plaintiff ultimately had to come to this Court to obtain relief. In those circumstances, I see no reason to depart from the ordinary position that the unsuccessful first defendant must pay the costs to which the plaintiff has been put of obtaining the relief to which it was entitled.

The Court therefore orders that: