Supreme Court New South Wales Medium Neutral Citation: Southwell v Qantas Airways Limited [2023] NSWSC 27 Hearing dates: On the papers Decision date: 01 February 2023 Jurisdiction: Common Law Before: Adamson J Decision: (1) Set aside the decision of the third defendant made on 12 April 2022 and the certificate issued on that day. (2) Remit the matter to the second defendant for determination by a differently constituted Appeal Panel. (3) Order each party to pay his, her, its or their (as the case may be), own costs. Catchwords: WORKERS COMPENSATION – Workers Compensation Guidelines – whether Appeal Panel erred in applying relevant Guidelines Legislation Cited: Workers Compensation Act 1987 (NSW), s 65A Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 313, 314, 319, 321, 322, 323, 325, 328, 331, 376 Cases Cited: Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 Texts Cited: Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021, cl 4.27 Category: Principal judgment Parties: John Southwell (Plaintiff) Qantas Airways Limited (First Defendant) President of the Personal Injury Commission of New South Wales (Second Defendant) Brett Batchelor, Drew Dixon and Margaret Gibson as an Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant) Representation: Counsel: E Romaniuk SC / E Grotte (Plaintiff) J Palamara (First Defendant) Submitting appearance (Second and Third Defendants) Solicitors: Sparke Helmore Lawyers (Plaintiff) LHD Lawyers (First Defendant) Crown Solicitor's Office (NSW) (Defendant) File Number(s): 2022/203060 JUDGMENT Introduction 1. 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%. 2. 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). 3. 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. 4. 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. 5. I am satisfied that the relief sought ought be granted. By reason of the parties' agreement, my reasons can be shortly stated. 6. 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). The relevant statutory provisions The Act and the 1987 Act 1. 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. 2. 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). 3. 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). 4. 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). 5. Section 331 provides: "331 Guidelines Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments." 1. Section 376(1) relevantly provides: "(1) The Authority may issue guidelines with respect to the following— (a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury, … (c) such other matters as a provision of the Workers Compensation Acts provides may be the subject of Workers Compensation Guidelines." 1. 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). 2. 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). The Guidelines 1. When assessing permanent impairment of the lumbar spine, a finding of radiculopathy results in an increase of 3% to the %WPI. 2. Clause 4.27 of the Guidelines defines radiculopathy in the following terms: "Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold): - loss or asymmetry of reflexes - muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution - reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution - positive nerve root tension (AMA5 Box 15-1, p 382) - muscle wasting – atrophy (AMA5 Box 15-1, p 382) - findings on an imaging study consistent with the clinical signs (AMA5, p 382). The relevant facts 1. 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 examination, he was a well-looking man with a slight antalgic gait. Trendelenburg's test was positive by fatigue. His toe stance demonstrates weakness of great toe dorsiflexion on the left side. Formal neurological examination demonstrates symmetrical knee and ankle reflexes with down-going Babinskis. There was grade 2/5 power of extensor hallucis longus on the left. The power was otherwise intact. Straight leg raise was to 90° bilaterally without tension signs. Hip range of motion and FABER tests were non-irritable. Peripheral pulses were present." 1. 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: "According to SIRA guidelines, page 27, paragraph 4.27, Mr Southwell meets the criteria for radiculopathy in that he has muscle weakness that is anatomically located to an appropriate spinal nerve root distribution (weakness of EHL [viz., extensor hallucis longus]) and findings consistent on imaging study consistent with his clinical signs". 1. 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. 2. 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. 3. 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. 4. 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: "… the criteria for radiculopathy in [4.27] of the guidelines have not been satisfied. If the Respondent [claimant] experienced sensory loss at L5, had wasting and demonstrated asymmetry of reflexes, there could have been a finding of radiculopathy. However, such is not the case. On the finding of the medical assessor, the Panel is of the view that, whilst there were signs of radiculopathy, there are insufficient findings on examination to determine that radiculopathy existed. Accordingly, the Panel finds error in the assessment of the Medical Assessor of 3% for persistence of symptoms and radiculopathy." 1. 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). 2. 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. 3. 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. 4. 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 Orders 1. For the reasons given above, and with the consent of the parties, I make the following orders: 1. Set aside the decision of the third defendant made on 12 April 2022 and the certificate issued on that day. 2. Remit the matter to the second defendant for determination by a differently constituted Appeal Panel. 3. Order each party to pay his, her, its or their (as the case may be), own costs. ********** Amendments 02 February 2023 - "It is common ground" replaced by "I am satisfied" - [23] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2023