Woolstar Pty Ltd v Lando

1. [1]

   SIMPSON AJ: By summons filed on 25 January 2021 the plaintiff, under the name “Woolworths Group Ltd” (“Woolworths”), sought, pursuant to s 69 of the Supreme Court Act 1976 (NSW), judicial review of a decision made by an Appeal Panel constituted under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”) on 26 October 2022. The summons named Gelsomina Lando, the Workers Compensation Commission of NSW and “The Medical Appeal Panel constituted of Catherine McDonald, Dr Roger Pillemer and Dr Brian Stephenson” as, respectively, the first, second and third defendants. By order of this Court dated 29 July 2021 the name of the plaintiff was amended to “Woolstar Pty Ltd” (“Woolstar”) and the name of the second defendant was amended to “President of the Personal Injury Commission”. The latter change accommodated significant amendments to the relevant legislation, which otherwise do not bear upon the present application. The second and third defendants have filed submitting appearances and have taken no part in these proceedings. The active participants are Woolstar as plaintiff, and Ms Lando as first defendant, to each of whom I will refer by name.

2. [2]

   Judicial review under s 69 of the Supreme Court Act is available to correct error of law on the face of the record and/or jurisdictional error. Woolstar alleges both error of law on the face of the record and jurisdictional error. As Woolstar’s argument depends substantially on an understanding of the legislative background, before proceeding to the basis on which error of either kind is alleged, it is necessary to outline that legislative background.

The legislative context

1. [3]

   The issue for present determination arises in the context of two inter-related statutes, the Workers Compensation Act 1987 (NSW) (“the WC Act”) and the WIM Act. Each statute has been substantially amended since the events giving rise to these proceedings, but in a manner that does not call for present consideration: Personal Injury Commission Act 2020 (NSW) (“the PIC Act”). References that follow are to the legislation as it stood at the relevant time but for convenience and clarity are framed in the present tense. The two Acts together are referred to as “the Workers Compensation Acts”: WIM Act, s 4, and, for example, s 367(1)(a).

2. [4]

   Broadly speaking, the WC Act makes provision for the payment of compensation to employees (“workers”) who suffer injury (as defined – see below) arising out of or in the course of employment. The WIM Act makes detailed provision for the procedures by which that compensation is to be assessed.

3. [5]

   By s 4 of the WC Act, “injury” is relevantly defined as follows:

4. [6]

   In the parlance of workers compensation litigation, injuries that fall within s 4(a) are commonly referred to as “frank injuries” and are distinguished from “disease injuries” within s 4(b), although this terminology is not to be found in either of the Workers Compensation Acts: see Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCCA 264 at [16] per Meagher JA. Also commonly used is the concept of a disease contracted as a result of the “nature and conditions” of the employment, also distinguishing “disease” injury from “frank injury”, and again incorporating language not to be found in the Workers Compensation Acts. Awareness of this terminology will facilitate an understanding of Woolstar’s contentions discussed below.

5. [7]

   Section 15(1) of the WC Act recognises that a disease may be of such a nature as to be contracted by a gradual process and makes provision for determination of a date on which such a disease is “deemed to have happened”. Section 16(1) makes similar provision for the determination of a date on which an injury that consists in aggravation, acceleration, exacerbation or deterioration of an existing disease is “deemed to have happened”. Section 16 has some, though relatively minor, present relevance. The purpose of these provisions, as the succeeding subsections make clear, is to attach liability for compensation to different employers by whom the worker has been employed over the periods during which the disease was contracted (s 15) or deteriorated or was aggravated, accelerated or exacerbated (s 16).

6. [8]

   Benefits payable under the WC Act include weekly payments of compensation during periods of partial or total incapacity for work (Div 2, Sub Div 2); compensation for medical, hospital and rehabilitation expenses (Div 3), compensation for non-economic loss (Div 4) and compensation for property damage (Div 5). Relevantly for present purposes, by s 66(1), where a work injury (whether personal injury within s 4(a) or a disease injury within s 4(b)) results in degree of permanent impairment greater than 10%, the entitlement to compensation extends to compensation in a lump sum calculated in accordance with a table contained in subs (2) of s 66.

7. [9]

   By s 322(1) of the WIM Act, the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines (“Guidelines”) issued under s 376 of the WIM Act; by subs (2) impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment. By s 323(1), in the assessment of the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury, or to any pre-existing condition or abnormality. By s 323(2), where it would be difficult or costly to determine the extent of a deduction to be made under subs (1), 10% of the impairment is to be assessed as attributable to the pre-existing condition, “unless this assumption is at odds with the available evidence”.

8. [10]

   By s 366(1) of the WIM Act the Workers Compensation Commission of NSW (the “Commission”) is established. By s 368(1) the Commission consists of a President, Deputy-Presidents, a Registrar and Arbitrators, all of whom are members of the Commission. By subs (2) of s 366 the Commission has such functions as are conferred by the Workers Compensation Acts. By s 367(1)(a) one of the objectives of the Commission is:

9. [11]

   By s 375(1) “for the purpose of any proceedings, the Commission is to be constituted by an Arbitrator” except as otherwise provided in that section.

10. [12]

    Chapter 4 of the WIM Act (which was substantially amended prior to the PIC Act amendments) makes detailed provision for making and dealing with claims for compensation. By s 78(1) (repealed before the PIC Act amendments) at the relevant time an insurer was required to give notice of any decision to dispute liability in respect of a claim or any aspect of a claim.

11. [13]

    Chapter 7 of the WIM Act deals with Compensation Dispute Resolution. Part 4 of Ch 7 makes provision for the determination of disputes about claims for compensation. By s 288(1) any party to a dispute may refer the dispute to the Registrar for determination by the Commission (subject to the qualification that only the claimant could refer a dispute about lump sum compensation). By s 294 where a dispute is determined by the Commission the Commission is, as soon as practicable, to issue a certificate of determination. By s 352(1) an appeal lies from a decision of an Arbitrator to the Commission constituted by a Presidential member (subject to some limitations which do not call for elucidation).

12. [14]

    Notwithstanding the general provisions of s 288 and s 375 that disputes are to be determined by the Commission, Pt 7 (ss 319-331) of Ch 7 establishes a specific regime for the resolution of “medical disputes”. “Medical dispute” is defined in s 319 to mean a dispute or question about (inter alia):

13. [15]

    By s 321(1) a medical dispute (other than a dispute concerning permanent impairment) may be referred for assessment under Pt 7 by a court, the Commission or the Registrar. Disputes concerning permanent impairment are expressly excluded from the referral power conferred by s 321. By s 293, where a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may (subject to regulations dealing with referral of medical disputes concerning permanent impairment) refer the dispute for assessment under Pt 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment. Section 321A authorises the making of regulations for the referral of disputes concerning permanent impairment. Researches made on my behalf have not unearthed any such regulations.

14. [16]

    For the purpose of the assessment of medical disputes (including disputes about permanent impairment), by s 320(1) medical practitioners are appointed as “approved medical specialists”. By s 325(1), after assessment, the approved medical specialist to whom the dispute is referred is to give a medical assessment certificate as to the matters referred for assessment. By s 326 a medical assessment certificate is conclusively presumed to be correct in any matter before the Commission or a court as to certain specified matters, including the degree of permanent impairment of the worker as a result of an injury.

15. [17]

    Section 327 confers a limited right of appeal against a medical assessment. By subs (3) grounds for appeal are confined to:

16. [18]

    By s 328 an appeal is to be heard by an Appeal Panel constituted by two approved medical specialists and one Arbitrator. By subs (5) of s 328 the Appeal Panel may confirm the medical assessment certificate or revoke that certificate and issue a new certificate.

17. [19]

    It can thus be seen that two categories of dispute are contemplated by the Workers Compensation Acts – medical disputes, the boundaries of which are clearly defined in s 319, and are committed for medical assessment under Pt 7 of Ch 7 of the WIM Act, and others (which may be referred to as “non-medical disputes”), the boundaries of which are not clearly defined but may be taken to be those that are not medical disputes within the s 319 definition. Medical disputes are determined by approved medical specialists subject to appeal to Appeal Panels; other (non-medical) disputes are determined by the Commission, usually constituted by an Arbitrator, subject to appeal to the Commission constituted by a Presidential member.

18. [20]

    The division of functions was expressed by Emmett JA in Bindah (echoing Handley AJA in Ragaa Haroun v Rail Corporation NSW [2008] NSWCA 192) as follows:

19. [21]

    Disputes that have been labelled “non-medical” are sometimes (including in the submissions in this case) referred to as disputes about liability.

Background

1. [22]

   From February 1995 Ms Lando was employed by Woolworths (as Woolstar was then known) as a storeperson. On 27 May 2015, when she was about to take a regular break from her duties, she tripped on a step and fell awkwardly onto the right side of her body. She felt immediate pain to her right hip, right wrist, and right ankle. She reported the fall to her manager. On 12 June 2015 Ms Lando lodged a “workers injury claim form” (p 64). To a question asking what part of her body was affected, she inserted “hip”. Ms Lando had medical treatment, and, eventually, a right hip replacement. All this was subject to her claim under the provisions of the WC Act and is not in issue.

2. [23]

   At some subsequent point Ms Lando began to experience pain in her left hip, which she attributed to an altered gait as a result of the right hip injury.

3. [24]

   In circumstances not fully disclosed in the evidence Ms Lando made a claim under s 66 of the WC Act for compensation for permanent impairment. That claim is not in evidence. On 2 December 2019 Woolworths responded (in a notice under s 78 of the WIM Act) by disputing liability “for the alleged right wrist and ankle injuries, together with impairment generally”.

4. [25]

   On 23 March 2020 Ms Lando filed in the Commission an “Application to Resolve a Dispute” (“ARD”). On the prescribed form, she identified her claim as one for medical expenses and “lump sum compensation where liability in dispute”, and the “type of injury” in respect of which she claimed as “disease”. She gave the date of injury as 27 May 2015, and ticked a box that indicated that that was a “deemed date”. That may be taken to have been a reference to s 16 of the WC Act. (The form was subsequently amended to delete the references to disease, and “deemed date of injury”, and to identify “personal injury” as the subject of the claim). Ms Lando gave a description of the injury as:

5. [26]

   Pursuant to s 288 of the WIM Act, the dispute was referred to the Commission for determination. An oral hearing took place before an Arbitrator, Mr Sweeney, some of which was recorded and transcribed and some of which was not. A transcript of a teleconference that took place on 1 May 2020 was tendered in evidence. Objection to its admission having been taken, I deferred ruling on its admission and admitted it provisionally. Except that it explains the amendment to the ARD, it throws little if any light on the issues. Nevertheless, to the extent that it illuminates what was before the Arbitrator, I will treat the transcript as having been admitted.

6. [27]

   On 5 May 2020, Mr Sweeney orally delivered his decision. He noted that Ms Lando had suffered “an accepted injury to her right hip on 27 May 2015” and claimed:

7. [28]

   Mr Sweeney observed that the jurisdiction of the Commission (as distinct from that of an approved medical specialist or an Appeal Panel) was limited to what he called “liability issues”, including whether Ms Lando had suffered an injury, and:

8. [29]

   Mr Sweeney found, as a fact, that in the incident of 27 May 2015 Ms Lando suffered soft tissue injuries to her right wrist and right ankle. He then concluded:

9. [30]

   In accordance with s 294 of the WIM Act Mr Sweeney issued a certificate of determination which included the following:

10. [31]

    On 3 July 2020 a delegate of the Registrar referred the dispute for medical assessment. The issues for assessment were identified as:

11. [32]

    The referral identified the relevant body parts as:

12. [33]

    The medical assessment was conducted on 31 July 2020 by Dr Greg McGroder, an occupational physician. Dr McGroder identified the right wrist, right ankle and hip and left hip as the body parts referred for assessment. He recorded the history of Ms Lando’s symptoms and radiological investigations undertaken between June 2015 and November 2018. An early MRI (June 2015) was recorded as demonstrating significant right hip osteoarthritis and other injuries. A 2017 X-ray was recorded as showing severe arthritic changes in the right hip and mild to moderate change in the left hip. Subsequent investigations continued to show early degenerative changes in the left hip.

13. [34]

    Dr McGroder noted:

14. [35]

    Dr McGroder referred to a number of medical reports, including one of Dr J Bodel, on whose report Ms Lando had relied, and said:

15. [36]

    Dr McGroder recorded that, prior to the June 2015 incident, Ms Lando had been pain free and without symptoms. Specifically with respect to the question of deduction under s 323 of the WIM Act, Dr McGroder said that Ms Lando’s hip conditions (plural):

16. [37]

    He referred to, and in part disagreed with, a report of Dr Powell, orthopaedic surgeon, who, Dr McGroder recorded, considered that Ms Lando’s condition was not work related.

17. [38]

    Dr McGroder accordingly declined to make any deduction under s 323 of the WIM Act from the assessment of permanent impairment.

18. [39]

    Dr McGroder issued a medical assessment certificate that certified whole person impairment at 22 percent (of which 16 percent was attributable to the right hip, 4 percent was attributable to the left hip and 4% to the right wrist) with no deductions under s 323 of the WIM Act for pre-existing injury, condition or abnormality. (The mathematics of the certificate are something of a mystery, but do not affect the questions for present determination.)

19. [40]

    Pursuant to s 327 of the WIM Act Woolworths applied to the Registrar for an appeal against the medical assessment, relying on grounds (c) and (d) of subs(3) (that is, that the assessment was made on the basis of incorrect criteria, or that the medical assessment certificate contained a demonstrable error). The Registrar was satisfied that one ground of appeal (ground (d)) was made out and referred the appeal to an Appeal Panel constituted by an Arbitrator and two approved medical specialists (the third named defendant). Both parties provided written submissions to the Appeal Panel. Woolworths contended that three errors could be seen in Dr McGroder’s assessment. The first was a calculation error in relation to the application of the Guidelines to the right wrist injury (an error that was conceded). The second was the failure of Dr McGroder to make a deduction, under s 323(1) of the WIM Act, from the assessment of the impairment to Ms Lando’s right hip. The third asserted error, consequential upon the first and second, lay in the ultimate assessment of 22% impairment.

20. [41]

    The written submissions provided on behalf of Woolworths (under that name) included:

21. [42]

    It was not correct to say that Dr Bodel and Dr McGroder had decided that Ms Lando’s impairment was in part attributable to the “nature and conditions of her employment”. Dr Bodel’s full report was not in the materials provided to this Court, but is summarised by Dr McGroder in his reasons. There is nothing in that summary, and nothing in Dr McGroder’s reasons for his assessment, that signifies any such decision.

22. [43]

    To the contrary, in the first sentence of the passage extracted above at [33] (under the heading “Summary of injuries and diagnoses) Dr McGroder attributed the aggravation of the underlying arthritic changes in Ms Lando’s right hip to the fall at work on 27 May 2015. He made no mention of any component of the condition being attributable to the nature and conditions of Ms Lando’s employment from 1995 (or any other time).

23. [44]

    Ms Lando’s legal representative (Mr Morgan) responded to Woolworths’ submissions by pointing to Dr Powell’s report. The submissions went on:

24. [45]

    Ms Lando was not further examined for the purposes of the appeal. The Appeal Panel relied on the evidentiary material that had been before Dr McGroder. The Appeal Panel faithfully recorded the submissions made by the parties and the findings and conclusions of Dr McGroder. It reviewed the various medical reports that had been placed before Dr McGroder. The Appeal Panel appears to have placed a different interpretation to Dr McGroder on Dr Powell’s report. It recorded that Dr Powell said that “the incident” (of 27 May 2015):

25. [46]

    The Appeal Panel’s dispositive reasons may be found in three paragraphs:

26. [47]

    After correcting the calculation error in the medical assessment certificate in relation to Ms Lando’s right wrist injury, the Appeal Panel otherwise confirmed the medical assessment by Dr McGroder and, on 26 October 2020, issued a fresh medical assessment certificate. That certificate certified 21 percent whole person impairment in lieu of the 22 percent certified by Dr McGroder.

27. [48]

    It is that decision that is the subject of the present appeal for judicial review.

The application for judicial review

1. [49]

   Woolstar seeks:

2. [50]

   The summons states the grounds for review as follows:

3. [51]

   At the outset of the hearing an evidentiary issue arose. Counsel for Woolstar sought to read an affidavit sworn by Woolstar’s solicitor, Mr David Hughes, on 18 March 2021. Mr Hughes had been present at the arbitration (which took place by teleconference) on 1 May 2020. Apparently no transcript is available of what took place in the teleconference and Mr Hughes’ proposed evidence was his account of what had transpired, including some observations he attributed to the Arbitrator concerning whether the injury in respect of which Ms Lando claimed compensation was “a frank injury” or a “disease injury”.

4. [52]

   Objection, on a number of bases, was taken on behalf of Ms Lando to the admission of the affidavit evidence. I deferred ruling on the question.

5. [53]

   I am now satisfied that the proposed evidence is not admissible. Remarks attributed to the Arbitrator during the course of a teleconference cannot have any bearing on the issues for present determination which are whether the Appeal Panel acted in excess of its jurisdiction or otherwise committed error of law on the face of the record. Observations made by an Arbitrator during the course of discussion cannot be taken to represent ultimate findings or conclusions. Much of Mr Hughes’ proposed evidence is, as was pointed out by senior counsel for Ms Lando, not from recollection but from reconstruction. Finally, the decision in question is that of the Appeal Panel, although, as will be seen, the Arbitrator’s decision is involved in Woolstar’s application.

6. [54]

   I decline to have regard to the proposed affidavit evidence of Mr Hughes.

7. [55]

   Two things should be emphasised at the outset. First, the decision under review is that of the Appeal Panel. The decisions of the Arbitrator and the approved medical specialist are not the subject of review (although they are a necessary part of the background). Second, the nub of Woolstar’s complaint is the decision to decline to make a deduction, under s 323 of the WIM Act, from the assessment of Ms Lando’s permanent impairment attributable to the condition of her right hip by reason of a pre-existing condition.

8. [56]

   Turning then to the pleaded grounds: two parts to ground 1 can be perceived - that the Appeal Panel exceeded its jurisdiction by:

9. [57]

   The submissions made in support of Ground 1 were elusive, particularly so as to whether the ground upon which reliance was placed was jurisdictional error or error of law on the face of the record. The written submissions were brief to the point of taciturnity. Relevantly, they were:

10. [58]

    The only indication given as to the identification of the “liability issue” referred to in the formulation of Ground 1 and again in par 30 of the submissions, is that contained in the second sentence of par 31. A finding that Ms Lando’s condition was “work derived” is not a “liability finding” – such a finding, if made, would clearly lie within s 319 (a) as a “medical dispute”, concerning the aetiology of the condition, and within the realm of the medical assessment regime. The Appeal Panel clearly accepted the weight of medical opinion (including that of Dr Powell) that it was the incident of 27 May 2015 that triggered the aggravation of the osteoarthritis already present. Moreover, attribution of the cause of permanent impairment is a necessary part of the assessment of the degree of permanent impairment suffered “as a result of an injury” (s 319(c)).

11. [59]

    The Appeal Panel did not exceed its jurisdiction by making a “liability finding”. Nor did it exceed its jurisdiction by departing from the findings of the Arbitrator. To understand that contention, it is necessary to turn to the oral submissions.

12. [60]

    The grounds stated in the summons appear to raise jurisdictional error as the basis for Woolstar’s claim. That that is so is supported by the transcript of the submissions made early in the hearing of the application, in which counsel is recorded as saying:

13. [61]

    Almost immediately thereafter, counsel is recorded as saying:

14. [62]

    As I understand Woolstar’s jurisdictional error argument, it is that what was found by the Arbitrator and referred by the Registrar’s delegate to the approved medical specialist was, and was only, a “frank injury”. That, so the argument went, was the foundation for jurisdiction of the approved medical specialist and therefore the Appeal Panel, and, in approaching its task on the basis that Ms Lando suffered “a disease injury”, the Appeal Panel went beyond the findings of the Arbitrator.

15. [63]

    The argument is founded on a false premise. It is not correct to say that the Arbitrator found, and found only, “frank injury”. What the Arbitrator found (as recorded in the certificate of determination) was that Ms Lando suffered “injury” to (inter alia) her right hip in the fall of 27 May 2015. “Injury”, as set out above, can be either “frank injury” or “disease injury”. I see nothing in the legislation that excludes a single incident giving rise to both a “frank injury” and a subsequent “disease injury”. That, indeed, is precisely what was found to have happened in this case. The “frank injury” suffered on 27 May 2015 resulted in “disease injury” within s 4(b)(ii) of the WC Act.

16. [64]

    The next step in Woolstar’s argument is that what was referred for medical assessment was, and was only, the “frank injury” said to have been found by the Arbitrator. That, too, can plainly be seen to be incorrect. What was referred for medical assessment is clearly spelled out in the Amended Referral – four questions, all relating to the assessment of permanent impairment resulting from the injury suffered in the fall. There was no confinement of the questions to permanent impairment resulting from the “frank injury” as distinct from a “disease”. There is, in fact, no such distinction. The medical evidence accepted by the Appeal Panel established that the aggravation of the pre-existing but asymptomatic disease resulted from the “frank injury”.

17. [65]

    The issues that were before the Appeal Panel, and with which it dealt, were the same as those that were before the approved medical specialist: (i) the degree of permanent impairment resulting from the injury suffered on 27 May 2015; (ii) whether any proportion of that impairment was due to any previous injury or pre-existing condition or abnormality and, if so, the extent of that proportion; (iii) whether the impairment was permanent; and (iv) whether the degree of permanent impairment was fully ascertainable. Given the manner in which the appeal was presented, the salient issue was the second – the degree, if any, to which the assessed degree of permanent impairment was attributable to a pre-existing condition.

18. [66]

    Woolworths presented its case to the Appeal Panel on the basis that the identified error in the reasoning of Dr McGroder was to approach the questions as though Ms Lando’s claim was that her condition was attributable to the nature and conditions of her work. That was never Ms Lando’s case, and it is not how it was treated by Dr McGroder. The Appeal Panel was not misled by the mischaracterisation of what Dr McGroder had found.

19. [67]

    Woolworths also argued for a s 323(1) deduction by reason of the “significant right hip osteoarthritis” shown in the MRI of June 2015 (less than one month after the fall at work). That was an argument open to Woolworths to run, but one which was unsupported by the medical evidence, and one which both Dr McGroder and the Appeal Panel resolved adversely to Woolworths. The Appeal Panel therefore declined to make any deduction under s 323(1) of the WIM Act. In doing so the Appeal Panel (like Dr McGroder) took the starting point as the commencement of Ms Lando’s employment in 1995. Having regard to the terms of s 323(1) (“in assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due … to any pre-existing condition or abnormality”) it may have been more accurate to take as the starting point 27 May 2015, the date on which Ms Lando suffered the incident that gave rise to her claims, and to consider whether any proportion of Ms Lando’s permanent impairment was due to any condition that existed prior to that date. However, no such point was taken in these proceedings, and, in any event, the medical evidence would clearly suggest the same result. That evidence was that, prior to May 2015, whatever condition was revealed by the radiological evidence, it was asymptomatic. In these proceedings Woolstar sought to have drawn an inference that, from the June 2015 MRI, it could be inferred that the condition was in some way active at that time. Such an inference is beyond the authority conferred on this Court by s 69 of the Supreme Court Act (and is contrary to the evidence).

20. [68]

    It has been accepted that:

21. [69]

    Heavy emphasis was placed by Woolstar on the identification by the Appeal Panel on 27 May 2015 as the “deemed date of injury”, thus (so it appeared to be argued) incorporating s 15 and/or s 16 of the WC Act. From this, the argument appeared to be that the Appeal Panel treated Ms Lando’s “disease injury” as a “disease of gradual process” for the compensation of which Woolworths (or Woolstar) became wholly liable.

22. [70]

    The first comment to make is that the Appeal Panel referred to a “deemed date of injury” only in recording the submissions made on Ms Lando’s behalf. The “deemed date of injury” played no part in its reasoning. Second, it will be recalled that s 16 provides a mechanism for fixing a date on which, for the purposes of attribution to an employer or employers of liability for compensation, an injury that consists of aggravation, acceleration, exacerbation or deterioration is “deemed to have happened”. Otherwise (and, in this case, having regard to Ms Lando’s long term employment with Woolworths) the deeming provisions of s 15 and s 16 are of no relevance.

23. [71]

    There was no jurisdictional error constituted by the Appeal Panel’s failure “to make a decision in conformity with the findings of [the] Arbitrator”.

24. [72]

    No jurisdictional error has been established. Ground 1 must be rejected. Nor has any error of law on the face of the record been demonstrated.

25. [73]

    Grounds 2 and 3 are, effectively, different versions of Ground 1. Each must also be rejected. Each proposes, erroneously, that the Appeal Panel was obliged to proceed on the basis that the only injury suffered by Ms Lando to her right hip in the fall was a “frank injury” or a “personal injury” within s 4(a) of the WCA. For the reasons given above, that is wrong.

26. [74]

    The challenge to the findings of the Appeal Panel therefore fails. The summons must be dismissed.

27. [75]

    The orders I make are:

    1. (1)

       Summons for judicial review dismissed;

    2. (2)

       The plaintiff to pay the costs of each defendant.