Supreme Court New South Wales Medium Neutral Citation: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 Hearing dates: 20/08/2013 Decision date: 11 September 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The summons filed 16 April 2013 is dismissed. (2) The plaintiff is to pay the first defendant's costs as agreed or assessed. Catchwords: ADMINISTRATIVE LAW - judicial review - injury to right eye - pre-existing condition - complications from surgery - nature of injury determined by arbitrator - extent of WPI due to injury Legislation Cited: Supreme Court Act 1970 Uniform Civil Procedure Rules Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 Haroun v Rail Corporation of NSW [2008] NSWCA 192 Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954 Category: Principal judgment Parties: Jean Christian Bindah (Plaintiff) Carter Holt Harvey Woodproducts Australia Pty Ltd (First Defendant) John Wynyard, Dr Harry Stern and Dr Michael Steiner as Members of the Appeal Panel of the Workers Compensation Commission of New South Wales (Second Defendants) Registrar of the Workers Compensation Commission of New South Wales (Third Defendant) Representation: Counsel: M Allars (Plaintiff) J Dodd (First Defendant) Solicitors: Turner Freeman (Plaintiff) Sparke Helmore (First Defendant) I V Knight, Crown Solicitor (Submitting Appearance Second & Third Defendants) File Number(s): 2012/147605 Publication restriction: Nil Judgment 1HER HONOUR: By summons filed on 16 April 2013, the plaintiff seeks firstly an order pursuant to Uniform Civil Procedure Rules r 59.10(2) extending the time for filing the proceedings to the date when the summons was filed; secondly, an order in the nature of certiorari quashing the whole of the decision made by the second defendant on 8 October 2012; and thirdly, an order remitting the matter to the third defendant to determine the matter according to law. 2The plaintiff is Jean Christian Bindah. The plaintiff relies on the affidavit of Richard Dabaneh sworn 23 May 2013. The first defendant is Carter Holt Harvey Woodproducts Australia Pty Ltd ("Carter Holt"). The second defendants are John Wynyard, Dr Harry Stern and Dr Michael Steiner as members of the Appeal Panel of the Workers Compensation Commission of New South Wales ("the Appeal Panel"). The third defendant is the Registrar of the Workers Compensation Commission of New South Wales ("the Registrar"). The second and third defendants have filed submitting appearances. Judicial review generally 3It is common ground that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970. Extension of time for filing proceedings 4Rule 59.10 of the Uniform Civil Procedure Rules commenced on 15 March 2013 and requires that parties seeking judicial review of a decision under s 69 of the Supreme Court Act must commence proceedings within three months of the decision. The relevant decision for which the plaintiff seeks judicial review was made on 8 October 2012. The plaintiff filed his summons on 13 April 2013 which was out of time under r 59.10(1). No point was taken by the defendant. The extension of time sought by the plaintiff under r 59.10(2) is granted. Background 5On 28 January 2009 the plaintiff, while employed by Carter Holt as a baler operator/forklift truck driver, sustained an injury to his right eye by a direct blow to the eye from a closing metal door of a waste-recycling bin. He was wearing a protective eye shield at the time which was shattered by the blow. 6On 5 February 2009 the plaintiff made a claim for workplace injury to the right eye. On 29 June 2009, the plaintiff had surgery on his right eye after complaining of poor vision for several months. On 30 June 2009, the plaintiff underwent further surgery because of a dislocated lens, a complication from his surgery the previous day. 7In April 2010, the plaintiff was diagnosed with a giant retinal tear and detachment of the retina in his right eye after experiencing extreme loss of vision in that eye. Following further surgery in April, May and June 2010, the plaintiff could not see out of his right eye. On 10 June 2010, the plaintiff lodged a recurrence of eye injury claim form detailing complete loss of vision in his right eye. 8On 14 July 2010, Carter Holt's workers compensation insurer notified the plaintiff by letter that it declined liability for weekly payments and medical expenses under s 60 of the Workers Compensation Act 1987 on the ground that the recurrence of the injury, involving the giant retinal tear and detachment was not a workplace injury within ss 4 and 9A of the Workers Compensation Act. 9On 23 June 2011, Carter Holt terminated the plaintiff's employment on the ground that he was permanently incapable of returning to his pre-injury duties. On 24 August 2011, the plaintiff lodged an Application to Resolve a Dispute which was referred to an arbitrator. The application described the injury as follows: "Right eye, being an exacerbation of pre existing cataract, necessitating surgery. Due to complications in surgery the applicant suffered a giant retinal tear and detachment." 10On 21 November 2011, the arbitrator issued a certificate under s 294 of the Workplace Injury Management and Workers Compensation Act 1998 ("the Act") following a conciliation conference. By consent, the arbitrator made the following relevant orders: "3. The applicant suffered injury on 28 January 2009 to his right eye and the Respondent has liability in respect of the injury. 4. The matter is remitted to the Registrar for referral to approved medical specialist." 11There is dispute between the plaintiff and Carter Holt as to the nature of the consent orders issued by the arbitrator. The referral request stated: "Date of injury: 28 January 2009 Body Part referred for assessment: Right eye Method of Assessment: Whole person impairment Approved Medical Specialist/s: To be selected by Registrar" 12The plaintiff submitted that Order 3 made by the arbitrator is directed to the description of the injury as stated in the plaintiff's application form. According to Counsel for the plaintiff, the "injury" is not the frank injury suffered by the blow on 28 January 2009 but rather an exacerbation of the pre-existing cataract, the type of injury defined in s 4(b)(ii) of the Workers Compensation Act. The plaintiff also submits that Order 3 made by the arbitrator was a determination on liability, to which the defendant consented, namely that the injury described in the application, an exacerbation of a pre-existing cataract necessitating surgery, was compensable. 13Carter Holt submitted that the only consent determination by the arbitrator was that the plaintiff did suffer an injury to his right eye and the defendant has liability in respect of that injury. According to Carter Holt there was no finding of the nature of the injury by the arbitrator and the expression "has liability in respect of the injury the Plaintiff suffered on 28 January 2009" cannot bind the AMS or the Appeal Panel. 14On 14 February 2013, the AMS Dr Anderson issued a Medical Assessment Certificate assessing the plaintiff as having 22% WPI in respect of the visual system - right eye. His reasoning was as follows: "a. my opinion and assessment of whole person impairment I am inclined to agree with Dr Duke that the trauma associated with the dislocated lens is the more probable cause of his subsequent detached retina and loss of vision, rather than the initial trauma on 28 January 2009. I agree however with Dr Delaney's report that he has whole person impairment of 22% as far as his vision is concerned." 15On 28 March 2012, Carter Holt lodged an appeal against the AMS's decision. The Registrar referred the matter for further assessment back to AMS Dr Anderson pursuant to s 329(1)(a) of the Act. On 11 May 2012, Dr Anderson issued a second Medical Assessment Certificate with a WPI of 0% in respect of the visual system - right eye. 16In his reasons, the AMS stated at [6]: "a. my opinion and assessment of permanent impairment and or whole person impairment I made a mistake in my original report as trauma from original cataract operation was the cause of loss of vision. b. an explanation of my calculations in addition to the worksheet or actual calculations attached - 0% impairment is due to operation" 17On 14 June 2012, the plaintiff lodged an appeal against the AMS's decision on the grounds that the assessment in the second Certificate was made on the basis of incorrect criteria (s 327(3)(c) of the Act) or it contained a demonstrable error (s 327(3)(d)). On 19 July 2012, the delegate of the Registrar was satisfied that the grounds of appeal, that the Certificate contains a demonstrable error in respect of the application by the AMS of causation, had been made out or, alternatively, that it contained a demonstrable error in providing inadequate reasons to explain the decision that a 0% degree of permanent impairment results from the injury as defined received to the right eye on 28 January 2009. On 8 October 2012, the Medical Appeal Panel, consisting of John Wynyard, an arbitrator, and Approved Medical Specialists, Dr Harry Stern and Dr Michael Steiner, confirmed the second Certificate for 0% WPI. Statutory framework 18For a worker to receive compensation under s 9(1) of the Workers Compensation Act, the worker must show an "injury" which is defined in s 4 as follows: "In this Act: injury: (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease..." 19No compensation is payable under the Workers Compensation Act pursuant to s 9A(1) in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. Section 9A(1) reads as follows: "(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury." 20Section 16(1) of the Workers Compensation Act applies where the employment contributes to the aggravation, acceleration, exacerbation or deterioration of a disease: "(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease: (a) the injury shall, for the purposes of this Act, be deemed to have happened: (i) ... (ii) if death or incapacity has not resulted from the injury-at the time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration." 21The Workplace Injury Management and Workers Compensation Act 1998 ("the Act") provides the statutory framework for the determination of a claim for workers compensation and for management of disputes arising from such claims. A "medical dispute" is defined in s 319 as: "...a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable." 22Section 321 provides for referral of a medical dispute for assessment. It reads as follows: "321 Referral of medical dispute for assessment (1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral. ... (3) The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker. (4) The Registrar may not refer for assessment under this Part: (a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or (b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment)." 23The status of a Medical Assessment Certificate issued by an assessor or Appeal Panel is defined in s 326 which reads as follows: "326 Status of medical assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings." 24A party to a medical dispute may appeal against a medical assessment pursuant to s 327: "327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out. ..." 25Where there is a pre-existing injury or impairment, a deduction is to be made as to the degree of permanent impairment, pursuant to s 323: "323 Deduction for previous injury or pre-existing condition or abnormality (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 previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%)." The Medical Appeal Panel's decision 26After recounting the medical evidence, at [47] to [50] and [55] to [59] the Appeal Panel stated as follows: 47. The Panel is not convinced that the subsequent retinal detachment and giant retinal tear were caused by the trauma on 28 January 2009. We note that Dr Murugesan at one point thought that the impact with the door had caused a traumatic cataract, and may have been the cause of the retinal detachment. However the contemporaneous notes of Dr Saks make both possibilities unlikely. The blow to the eye caused a corneal abrasion and mild uveitis, which had resolved within five days. The cataract was already present. Nonetheless, we note the view of Dr Chang, expressed above, that the cataract was likely to have progressed more quickly following the blow to the right eye. 48. S 16 1987 Act provides relevantly: - (1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease...(Emphasis added). 49. It can be seen that Dr Chang's opinion was that the blow on 28 January 2009 accelerated the progress of the cataract. We are satisfied that the condition of the appellant was one of a person suffering from a disease process: (as to disease, see Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 per Barwick CJ at [15]. See also the discussion in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310; (1996) 140 ALR 156; (1996) 71 ALJR 32). 50. It can thus be seen that if we were satisfied that the treatment undergone by way of surgery on 29 and 30 June 2009 was necessitated as a result of the acceleration of the progress of the posterior polar cataract caused by the blow to the eye on 28 January 2009, then the appellant would have established an entitlement pursuant to s.16. ... 55. This causal link was described by Dr Michael Delaney in his report of 28 March 2011. He pointed out some factual errors in the opinion of Dr Duke, and then said (ARD 4): - ....the need for cataract surgery was caused or exacerbated by the injury at work and this operation [that of 30 June 2009] and its complications caused or exacerbated the retinal detachment. 56. However, on a close analysis of the evidence we are unable, with respect, to agree. The critical evidence is that of Dr Saks, in two respects. Firstly, Dr Saks found the right eye injury to be minor, following the injury of 28 January. He found a small superficial corneal abrasion, a mild conjunctival injection and only a few cells in the anterior chamber. Fortunately, due to his protective eye shield, this was all that occurred. The eye healed in a few days. If the injury had been severe enough to cause damage to his lens, the corneal damage and surrounding eye damage would have been much more significant. 57. Secondly, Dr Saks diagnosed right advanced cataract with markedly reduced vision of 6/36 partly, which was pre-existing. He did not say this was traumatic in nature and commented that he expected it would require operation in the future. 58. Dr Chang did not have the benefit of Dr Saks's findings when he gave his opinion. Although his opinion in his report of 28 June 2011, as extracted above, made a causal connection, in his earlier report of 1 December 2010 he made an important qualification to that opinion. At ARD 9 Dr Chang said: - ...If the blow to the right eye was substantial this may have caused the cataract to progress more quickly... 59. For the reasons given, we find that the blow to the eye itself was not substantial, and thus the underlying condition of Dr Chang's opinion has not been satisfied." 27The plaintiff submitted that the Appeal Panel's decision is invalid for jurisdictional error because the Appeal Panel asked itself the wrong question and misconceived its function under ss 322(1) and 328 of the Act by attempting to determine whether the plaintiff's permanent impairment was caused by the work injury. According to the plaintiff, that issue was the function of an arbitrator which had been determined by the arbitrator's decision on 21 November 2011 and was not capable of referral to an AMS under s 321 of the Act or of an appeal to the Appeal Panel under s 327. Hence, the plaintiff says that the Appeal Panel failed to ask itself the proper question that question being what was the degree of permanent impairment resulting from the injury. 28The Appeal Panel made a jurisdictional error, the plaintiff further submitted, in assessing the degree of impairment resulting from the work injury solely by attributing the cause of the permanent impairment to a pre-existing condition rather than to the work injury. According to the plaintiff, the Appeal Panel was required to address pursuant to s 323(1), whether there was to be a deduction for any proportion of the impairment that was due to the pre-existing condition. It was also required to address pursuant to s 323(2), whether the assumption that the deduction is 10% of the impairment was met by asking whether the extent of a deduction would be difficult or costly to determine. The plaintiff submitted that the Appeal Panel failed to address either matter. 29In Haroun v Rail Corporation of NSW [2008] NSWCA 192, the Court of Appeal held that this was a matter for the Appeal Panel whether any permanent impairment "resulted from" the injury as found by an arbitrator. Handley AJA (McColl JA and McDougall J concurring) stated at [16] - [22]: "16 ...The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers' Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel. 17 Section 65(1) and (3) of the 1987 Act provides that in the event of a dispute the degree of permanent impairment that results from an injury is to be assessed in accordance with Part 7 of the 1998 Act. This includes ss 321, 323, 326, 327 and 328. 18 Section 326(1) provides that a MAC 'is conclusively presumed to be correct ... in any proceedings before a Court or the Commission' as to (a) 'the degree of permanent impairment of the worker as a result of an injury' and (b) 'whether any proportion of permanent impairment is due to any previous injury or pre-existing condition.' This section also applies to a MAC issued by a Panel: s 328(5). 19 The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise. 20 If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but "may refer it for assessment" by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244. 21 Since the Arbitrator had no jurisdiction to decide the medical dispute he, referred had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive. 22 Section 350(1) of the 1998 Act provides that 'Except as otherwise provided by this Act' a decision of the Commission [which includes an Arbitrator] 'is final and binding on the parties and is not subject to ... review'. This section did not make the consent findings of the Arbitrator binding on the parties because the Act otherwise provides. A MAC which is conclusively presumed to be correct under s 326(1) trumps any inconsistent findings by an Arbitrator and such findings are neither final nor binding on the parties." 30The plaintiff says that the injury the Appeal Panel had to consider was the permanent impairment resulting from the exacerbation of the pre-existing cataract caused by the blow to the right eye. The Appeal Panel then had to consider what proportion of the permanent impairment was due to a pre-existing condition and make the appropriate deduction. 31It is for the arbitrator to decide the legal and factual issues. The arbitrator found that the plaintiff had suffered an injury to his eye on 28 January 2009 and Carter Holt was liable for that injury. In Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954, Malpass AsJ held that once the fact of an injury had been established by an arbitrator, it was for the AMS to determine the degree of permanent impairment resulting from the injury. The Appeal Panel accepted that the plaintiff had suffered an injury to his right eye on 28 January 2009. 32In Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365, the arbitrator had determined that Mr Elcheikh had suffered a compensable injury as the result of his heavy work over a period of 10 years, for which the former employer was liable. The nature of that injury was an aggravation of a previously asymptomatic condition, not as a result of any particular, identifiable event. Schmidt J held at [125] that: "The starting point of a medical assessment conducted under s 322 is that the impairment being assessed resulted from an injury suffered at work, Under s 323, the medical specialist is not called upon to determine whether the resulting impairment was contributed to by that work. The assessment proceeds on the basis that it did." 33The relevant injury in Elcheikh fell within the meaning of s 4(b)(ii) of the Workers Compensation Act. Although the Plaintiff in the current matter submitted that the arbitrator had determined that the Plaintiff suffered an injury under s 4b(ii), this was not in fact the case. Rather, the arbitrator made orders by consent that the Plaintiff suffered an injury to his right eye on 28 January 2009. This injury was a discrete blow to the eye, which fell within the meaning of s 4(a) of the Workers Compensation Act. Therefore there could be no inconsistency between the orders made by the arbitrator, and the finding of the AMS (and the Appeal Panel) that the work injury did not result in any permanent impairment. It appears that principle expressed by Schmidt J above, that it is not the function of the AMS to determine whether the impairment was contributed to by the worker's employment does not apply to the facts of this case. 34It was common ground between the parties that the retinal detachment was the result of complications from the cataract surgery in June 2009. There was no question of negligence in the medical treatment and it was accepted that the complications arising from the surgery led to the subsequent spontaneous retinal detachment. 35The Appeal Panel noted the opinion of Dr Chang who had conducted the surgery after the complications from the initial cataract surgery in June 2009. Dr Chang, at that time, was of the opinion that the cataract "was likely" to have progressed more quickly following the blow to the right eye. On 1 December 2010, Dr Chang stated in a letter to the plaintiff's solicitor, that "[I]f the blow to the right eye was substantial this may have caused the cataract to progress more quickly" (R Dabaneh Aff, 23 May 2013, Ex RD-1 p 45). The Appeal Panel acknowledged that if the surgery at the end of June 2009 to correct the retinal detachment and tear was necessitated as a result of the acceleration of the progress of the cataract caused by the blow to the eye, the plaintiff would have established an entitlement to compensation under s 16 of the Workers Compensation Act. However, the Appeal Panel came to the conclusion that the blow to the eye was not substantial and that the need for cataract surgery was not caused or exacerbated by the injury at work. 36The Appeal Panel was required to determine the extent of any permanent impairment that had resulted from the work injury of 28 January 2009. The correct question to be answered by the Medical Appeal Panel was whether loss of vision in the right eye because of the complications arising from the cataract surgery, was caused or materially contributed to by the accident. They determined that the blow to the eye itself was not substantial and did not cause the cataract to progress more quickly. The Appeal Panel then confirmed the decision in the second Medical Assessment Certificate, that the plaintiff has 0% WPI as a result of the injury. In doing so, the Appeal Panel did not stray from the principles set out in Wikaira v Registrar of the Workers Compensation Commission or Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq). 37It is my view that the Medical Appeal Panel posed and answered the correct question. This ground of the plaintiff's application for judicial review fails. 38As the Appeal Panel found that no permanent impairment resulted from the work injury, there was no need for it to consider a deduction for the pre-existing injury pursuant to s 323 of the Act. As a result, this ground of the plaintiff's application for judicial review also fails. 39In the alternative, the plaintiff submitted that even if the Appeal Panel did act within jurisdiction in determining whether the permanent impairment was caused by the work injury, it made a non-jurisdictional error of law on the face of the record by: (1) Incorrectly assuming that the blow to the right eye on 28 January 2009 was the work injury when as a matter of law the work injury for the purposes of ss 4, 9A and 16 of the Act was the exacerbation or aggravation of the plaintiff's existing cataract condition in the right eye; (2) Misapplying the test of causation in asking whether the permanent impairment was caused directly by the frank injury from the blow to the right eye on 28 January 2009, instead of asking whether the permanent impairment was caused by the exacerbation or aggravation of the existing cataract condition. 40In written submissions to the Registrar in respect of the appeal against the second assessment of the AMS Dr Anderson, the plaintiff stated: "1. There is no dispute that the worker suffered injury by way of frank trauma to the right eye in an incident on 28 January 2009. 2. The incident is not in dispute. Injury to the right eye is not in dispute. The question before the Workers Compensation Commission was whether the trauma to the eye on 28 January 2009 caused or contributed to the exacerbation or aggravation of a pre-existing condition necessitating the need for surgery. If that is affirmative, then any complications in that surgery (ie loss of vision) is part of the compensable injury." (R Dabaneh Aff, 23 May 2013, Ex RD-1 p 329) 41Carter Holt submitted that the arbitrator made no finding that the nature of the plaintiff's injury on 28 January 2009 was an aggravation of a disease to which the employment was a substantial contributing factor. The only consent determination made by the arbitrator was that "the Plaintiff suffered injury on 28 January 2009 to his right eye and the First Defendant has liability in respect to injury." The plaintiff's written submissions to the Registrar seem to be in agreement with Carter Holt's submission as to the arbitrator's decision. 42In my view, the plaintiff's assertion in the hearing before me, that the work injury as determined by the arbitrator was the exacerbation or aggravation of the existing cataract condition, is not correct. The words of the consent order are clear. The parties agreed that the referral was for an injury to the right eye. Had the parties agreed that the injury was an "exacerbation of pre existing cataract, necessitating surgery" this would have been reflected in the consent orders. Even if the parties had agreed that the injury was an exacerbation to the pre-existing cataract rather than the frank injury to the right eye that occurred on 28 January 2009, it may have been beyond the arbitrator's powers as it would have been a determination of a medical issue (see Haroun at [16]). The Appeal Panel did not make an incorrect assumption and made no non-jurisdictional error on the face of the record in this regard. 43In relation to the second submission, that the Appeal Panel misapplied the test of causation, it was common ground that the retinal detachment and tear were caused by complications from the cataract surgery. Pursuant to s 326(1) of the Act an assessment in a Medical Assessment Certificate is conclusively presumed to be correct, including whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. A dispute between a claimant and the person on whom a claim is made in relation to the degree of permanent impairment due to an injury, and what proportion of that permanent impairment is due to a pre-existing condition, is a "medical dispute" pursuant to s 319 of the Act. 44The Appeal Panel answered the question posed in the plaintiff's submissions to the Registrar where they said at [47]: "The Panel is not convinced that the subsequent retinal detachment and giant retinal tear were caused by the trauma on 28 January 2009." The Appeal Panel goes on to say at [49] - [50] that they "are satisfied that the condition of the appellant was one of a person suffering a disease process... It can thus be seen that if we were satisfied that the treatment undergone by way of surgery... was necessitated as a result of the acceleration of the progress of the ... cataract caused by the blow to the eye on 28 January 2009, then the appellant would have established an entitlement pursuant to s 16." (My emphasis added.) 45The Appeal Panel was not so satisfied. They did not misapply the test of causation. The Appeal Panel did not make a non-jurisdictional error of law on the face of the record. 46The result is that the application for judicial review fails. The summons filed on 16 April is dismissed. Costs are discretionary. 47Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant's costs as agreed or assessed. The Court orders that: (1) The summons filed 16 April 2013 is dismissed. (2) The plaintiff is to pay the first defendant's costs as agreed or assessed. ********** 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: 11 September 2013