Southwell v Qantas Airways Limited

By further amended summons filed on 11 October 2022, the plaintiff, John Southwell (the claimant), seeks relief which includes an order setting aside the decision of Brett Batchelor, Drew Dixon and Margaret Gibson, the third defendant (the Appeal Panel) made on 12 April 2022 (the Decision) and the Certificate issued by the Appeal Panel that the plaintiff’s percentage Whole Person Impairment (%WPI) is 11%.

The assessment of %WPI was made as a result of the claimant’s claim for permanent impairment arising from an injury which he sustained on 18 August 2017 in the course of his employment with the first defendant, Qantas Airways Limited (the employer).

The second defendant, the President of the Personal Injury Commission of New South Wales (the Commission), and the Appeal Panel have each filed submitting appearances.

The claimant and the employer have agreed that the Decision and the Certificate ought be set aside and that the matter ought be referred back to the President of the Commission for determination by a differently constituted Appeal Panel. It is, accordingly, necessary for this Court to determine whether the relief is appropriate and warranted.

I am satisfied that the relief sought ought be granted. By reason of the parties’ agreement, my reasons can be shortly stated.

All references to legislation in these reasons are, unless otherwise stated, references to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act).

Pursuant to s 65A(3) of the Workers Compensation Act 1987 (NSW) (the 1987 Act), a claimant can only be awarded compensation for permanent impairment in respect of a primary psychological or psychiatric injury if the assessed %WPI is at least 15%. A claimant cannot commence court proceedings for the recovery of work injury damages unless the degree of WPI has been assessed by an Approved Medical Specialist (AMS) to be at least 15%: ss 313 and 314 of the Act.

A dispute between a claimant and an employer as to the degree of permanent impairment is a “medical dispute” within the meaning of s 319 in Pt 7 of the Act. The Registrar may refer a medical dispute to an AMS: s 321. The assessment of the degree of permanent impairment is to be “made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose”: s 322(1).

An AMS to whom a medical dispute has been referred is to give a medical assessment certificate as to the matters referred for assessment: s 325(1). The certificate is to certify the assessment, the reasons for assessment and the facts on which the assessment is based: s 325(2).

A party may appeal against a medical assessment on specified grounds: s 327. An appeal against a medical assessment is to be heard by an Appeal Panel constituted by two medical assessors and one member of the Commission: s 328(1). It is to be by review, but is limited to the grounds of appeal: s 328(2). The Guidelines can provide for the procedure on appeal: s 328(2). The Appeal Panel may confirm the AMS’s certificate or may revoke it and issue a new certificate: s 328(5).

Section 331 provides:

Section 376(1) relevantly provides:

It was common ground that the applicable guidelines were the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines).

Guidelines issued pursuant to s 376(1) have the effect of delegated legislation: Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] (Bell P and Payne JA).

When assessing permanent impairment of the lumbar spine, a finding of radiculopathy results in an increase of 3% to the %WPI.

Clause 4.27 of the Guidelines defines radiculopathy in the following terms:

As referred to above, the claimant was injured on 18 August 2017. He made a claim for damages for permanent impairment. An AMS assessed his %WPI as 15%, which included 3% which was attributable to a finding of radiculopathy. Of present relevance, the AMS made the following findings on examination of the claimant:

On the basis of the findings on examination, the AMS applied cl 4.27 of the Guidelines and considered that a finding of radiculopathy was warranted. The AMS said:

On this basis, the AMS allowed 3% WPI for the persistence of symptoms and radiculopathy. This formed part of the AMS’ overall assessment that the claimant had sustained 15% WPI.

The employer appealed against the assessment which was referred to the Appeal Panel. The Appeal Panel did not consider it necessary to examine the claimant and relied on the findings made by the AMS.

When considering whether a finding of radiculopathy was appropriate with respect to the claimant, the Appeal Panel extracted, at [68] of its reasons, the AMS’ findings on examination set out above.

The Appeal Panel, when addressing cl 4.27 of the Guidelines, came to the opposite conclusion to that arrived at by the AMS. It said:

I am satisfied that the Appeal Panel failed to apply the applicable Guidelines in terms. Clause 4.27 of the Guidelines requires a minimum of two of the criteria to be satisfied, only one of which needs to be a major criterion. The clinical findings of the AMS (which were accepted the Appeal Panel) were sufficient to satisfy the criteria for radiculopathy because the AMS found, first, “muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution” (being a major criterion) and, secondly, “findings consistent on imaging study consistent with his clinical signs” (being a non-major criterion).

It is not necessary to determine whether any non-compliance with the Guidelines would constitute an error of law. However, I am satisfied that non-compliance with cl 4.27 of the Guidelines (which defines radiculopathy with precision) amounts to an error of law. It is appropriate, in these circumstances, to set aside the Decision and the Certificate since neither has been made in accordance with law.

The claimant also seeks an order that the matter be referred to a differently constituted Appeal Panel. I am persuaded that this order is necessary as there may be an apprehension of bias if the matter were remitted to the Appeal Panel, as previously constituted.

This error is sufficient to warrant the relief claimed. Accordingly, it is not necessary to address the second ground in the further amended summons which alleges that the Appeal Panel failed to comply with s 323 of the Act which required it to determine the deduction to %WPI for a pre-existing condition

For the reasons given above, and with the consent of the parties, I make the following orders: