Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd - [2014] NSWCA 264

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264
Hearing dates: 15/04/2014
Decision date: 14 August 2014
Before: Meagher JA at [1];
Ward JA at [31];
Emmett JA at [32]
Decision:
1 Grant leave to appeal.
2 Direct that the draft notice of appeal filed on 9 October 2013, with the deletion from Order 5 sought in the draft notice of appeal of the words "to constitute an Appeal Panel pursuant to s 328(1) of the WIMWC Act to determine the matter according to law", stand as the notice of appeal and be taken to have been filed on 9 October 2013.
3 The appeal be dismissed.
4 The appellant pay the costs of the appeal of the first respondent.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: WORKERS COMPENSATION - entitlement to compensation - whether the Appeal Panel of the Workers Compensation Commission wrongly determined liability and causation in the place of an arbitrator - whether the matter was capable of referral to an approved medical specialist under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether the arbitrator characterised the injury as a "frank injury" or as an exacerbation or aggravation of a pre-existing condition - whether the Appeal Panel erred in failing to address s 323 of the Act
Legislation Cited: Supreme Court Act 1970 (NSW), s 69(4)
Workers Compensation Act 1987 (NSW), ss 4, 9, 9A, 16, 65, 65A, 66, 67
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 105, 288, 289, 293, 294, 319, 320, 321, 323, 324, 325, 326, 327, 328, 329, 366
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302
Beck v Weinstock [2012] NSWCA 289
Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290
Colliar v Bulley [2000] NSWCA 1
Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365
Haroun v Rail Corporation New South Wales [2008] NSWCA 192
Khaya v Container Terminals Australia Ltd [2005] NSWCA 433
Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567
Rail Services Australia v Dimovski [2004] NSWCA 267
Rogers v Wentworth (NSW Court of Appeal, 18 April 1988, unreported)
Zanardo v Tolevski [2013] NSWCA 449
Category: Principal judgment
Parties: Jean Christian Bindah (Applicant)
Carter Holt Harvey Woodproducts Australia Pty Ltd (First Respondent)
Appeal Panel of the Workers Compensation Commission of New South Wales (Second Respondent)
Registrar of the Workers Compensation Commission of New South Wales (Third Respondent)
Representation: Counsel:
M Allars SC (Applicant)
JW Dodd (First Respondent)
Solicitors:
Turner Freeman (Applicant)
Spark Helmore (First Respondent)
Crown Solicitor's Office (NSW) (Second and Third Respondents, submitting appearances)

File Number(s): 2013/303570
Publication restriction: Nil
Decision under appeal

Citation:

Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290

Date of Decision:

2013-09-11 00:00:00

Before:

Harrison AsJ

File Number(s):

2012/147605

Judgment

MEAGHER JA: This is a concurrent hearing of an application for leave to appeal, and appeal, from a decision of Harrison AsJ dismissing a worker's application for judicial review of a decision of the Appeal Panel of the Workers Compensation Commission: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290. The decision of the Appeal Panel was made under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). It confirmed a medical assessment certificate dated 8 June 2012 that the permanent impairment claimed by the applicant - loss of the sight in his right eye - did not result from the workplace injury sustained by him on 28 January 2009.

Before the primary judge and this Court it was argued that the Appeal Panel had exceeded its jurisdiction when reviewing that assessment. The applicant contended that in the circumstances the only matters in dispute, which could have been the subject of a medical assessment under Part 7 of the WIM Act, were the degree of permanent impairment that he had suffered, and whether there should be any deduction for any proportion of the impairment that is due to a pre-existing condition.

The applicant's argument that there was jurisdictional or other error on the part of the Appeal Panel depends for its success upon two related propositions. The first is that the "injury" in respect of which he sought compensation for permanent impairment was correctly characterised as consisting in the exacerbation or aggravation of a disease - a pre-existing cataract condition - to which his employment was a substantial contributing factor: Workers Compensation Act 1987 (NSW) (1987 Act) ss 4(b)(ii) and 16. The second is that that "injury" was the subject of a consent determination of the Commission made under s 294 of the WIM Act. That determination was that the applicant "suffered injury on 28 January 2009 to his right eye" and that the respondent has liability in respect to that injury.

In my view neither of those propositions is correct. An understanding of why that is so is assisted by a more detailed consideration of the applicant's argument and the circumstances in which it is made.

The applicant's argument before the Appeal Panel and the primary judge

It is necessary first to briefly outline the sequence of events in which the applicant lost vision in his right eye. On 28 January 2009 a waste bin door hit him in the face and right eye. That incident happened in the course of the applicant's employment by the respondent as a baler operator/forklift driver. At the time, he had a cataract in his right eye. In a Worker's Injury Claim Form completed on 5 February 2009, the applicant described this incident as follows:

"When walking out of waste bin door closed hitting me in the face (and right eye)."

In June 2009 the applicant underwent cataract surgery to his right eye. There were complications and a second operation was required. In April 2010, and as a result of those complications, the applicant suffered a giant retinal tear and retinal detachment in the same eye. Surgical attempts to repair that detachment were not successful, leaving the applicant with a complete loss of vision. On 10 June 2010 he made a compensation claim for a recurrence of the previous injury. The form he completed referred to the original injury date as 28 January 2009 and described the injury as "bruising right eye".

Against this sequence of events, the applicant's argument as developed was as follows. The impact injury exacerbated or aggravated the pre-existing cataract condition, necessitating the surgery which involved the complications leading to the retinal detachment and loss of vision. The acceleration or exacerbation of the existing disease was itself an "injury" within ss 4(b)(ii) and 16 of the 1987 Act; and resulted in permanent impairment to the right eye for which the applicant was entitled to compensation under s 66 of the 1987 Act.

The respondent's workers compensation insurer accepted that the applicant had suffered an injury for which the respondent was liable within s 9 of the 1987 Act but disputed that that injury included or involved a material exacerbation or aggravation of the cataract requiring surgery. The essence of the dispute between the parties was captured in the exchange of correspondence which followed the communication of the insurer's decision to deny the applicant's recurrence claim. The applicant's solicitors by letter dated 22 July 2011 requested a second review of that decision. They summarised their understanding of the position to that point in time as follows:

"You will appreciate essentially that our client's position is that his work injury on 28 January 2009 caused a material aggravation to his pre-existing right eye cataract which caused it to require surgery and following which surgery our client suffered retinal detachment which has led to near complete loss of vision in the right eye. But for the injury of 28 January 2009 our client may not have required cataract surgery at that time and may not have suffered the complications associated with that surgery which may have led to the detachment."

The insurer conducted that further review and advised the outcome by its letter dated 9 August 2011. It maintained its original decision, summarising its reason for doing so as follows:

"... we are not convinced on the balance of probabilities that the injury of 28 January 2009 caused the need for the cataract surgery and the subsequent retinal detachment to your right eye."

On 24 August 2011, the applicant referred the dispute about to his claim to the Commission under s 288 of the WIM Act. Subject to the provisions of the WIM Act and the 1987 Act, the Commission had exclusive jurisdiction to examine, hear and determine that dispute: WIM Act, s 105. One matter required to be assessed by an approved medical specialist is the "degree of permanent impairment that results from an injury": 1987 Act, s 65(1), (3). Where a dispute before the Commission concerns that matter, the Registrar must refer that aspect of the dispute for medical assessment under Part 7 except "where liability is in issue and has not been determined by the Commission": WIM Act, s 293(2), (3)(a) and s 321(4)(a).

The application by which the dispute was referred to the Commission for determination described the injury as "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" and the date of that injury as "28 January 2009". The claim made was for weekly benefits, medical expenses and compensation for permanent impairment, including pain and suffering.

That dispute was the subject of the consent orders made on 21 November 2011. Those orders included:

"3. The applicant suffered injury on 28 January 2009 to his right eye and the Respondent has liability in respect to injury.

4. The matter is remitted to the Registrar for referral to approved medical specialist."

The medical dispute as to the degree of permanent impairment as a result of the eye injury suffered on 28 January 2009 was referred to an approved medical specialist, Dr Anderson. His first assessment was the subject of a medical assessment certificate dated 29 February 2012. Following an appeal against that assessment by the respondent under s 327(1) of the WIM Act, the assessment was referred back to Dr Anderson for reconsideration: WIM Act, ss 327(6), 329(1). Following that further assessment, Dr Anderson issued a certificate dated 8 June 2012 which assessed the applicant's permanent impairment as a result of that injury as "0% impairment is due to operation". That assessment is to be understood as being that any permanent impairment was due to the surgery and not to the injury suffered on 28 January 2009.

The Appeal Panel, by its decision dated 8 October 2012, confirmed that assessment. It addressed whether, as the applicant contended, the injury of 28 January 2009 exacerbated or aggravated his pre-existing cataract condition. The applicant relied upon evidence of Dr Chang, the ophthalmologist who operated on his right eye on 30 June 2009. The Appeal Panel concluded, referring to the evidence of Dr Saks, the ophthalmic specialist who saw the applicant on the day of his accident, that the blow to his right eye was minor and not substantial. When Dr Saks saw the applicant on 2 February 2009 he recorded that the "corneal abrasion with mild traumatic uveitis", which he had observed on 28 January, had "resolved". For that reason, the Appeal Panel considered that the qualification to Dr Chang's opinion (expressed in his letter dated 1 December 2010) that if the blow had been "substantial" it might have caused the cataract to progress more quickly, was not made out.

The applicant argued that it was not open to the medical assessor or the Appeal Panel, when assessing or reviewing the assessment of "the degree of permanent impairment of the worker as the result of an injury", to determine whether the blow to the applicant's right eye had exacerbated the pre-existing cataract. That question was part of the "liability" inquiry, and was whether the applicant worker had received an injury consisting in the exacerbation or aggravation of the cataract condition. The applicant submitted that that question had been determined by order 3 made by the Commission. That order was to be understood as referring to an injury consisting in the exacerbation of the pre-existing cataract condition to which the applicant's employment by the respondent was a substantial contributing factor: 1987 Act, ss 4(b)(ii), 9, 16(1)(b).

The decision of the primary judge and issues in the appeal

The primary judge rejected the applicant's argument that the "injury" referred to in order 3 was "not the frank injury suffered by the blow on 28 January 2009 but rather exacerbation of the pre-existing cataract": [2013] NSWSC 1290 at [12], [33], [42]. Although the expression "frank injury" is commonly used in this context it does not appear in the 1987 Act or the WIM Act. It is used to describe an injury within s 4(a) of the 1987 Act received in a particular event or incident as distinct from one arising out of the nature and conditions of employment. Examples of this use are found in the decisions of this Court in Colliar v Bulley [2000] NSWCA 1 at [23] (Priestley JA); Rail Services Australia v Dimovski [2004] NSWCA 267 at [26] (Handley JA); and Khaya v Container Terminals Australia Ltd [2005] NSWCA 433 at [15] (Giles JA). The primary judge found that the "injury" which was the subject of the order was the trauma injury to the right eye which occurred on 28 January 2009. The applicant challenges that holding by ground of appeal 2.

On the basis that this was the effect of the order, the primary judge concluded that the Appeal Panel had asked and answered the correct question. The Panel considered whether the causal connection, described in s 66(1) by the words "that results in", was satisfied. If the surgery in June 2009 was necessary because of the acceleration of the progress of the cataract condition, and that acceleration was part of the pathology of the trauma injury, the impairment - being the loss of vision - would have resulted from that injury: [2013] NSWSC 1290 at [35]. It was common ground that the complications arising from the cataract surgery had led to the retinal detachment and subsequent impairment: [2013] NSWSC 1290 at [34]. The dispute remained whether the pathology of the trauma injury included the exacerbation of the cataract condition: [2013] NSWSC 1290 at [36]. The Appeal Panel's observation, to which the primary judge refers at [35], that the applicant would then have established "an entitlement pursuant to s 16", was not correct. Any entitlement to compensation for permanent impairment arose under s 66. In respect of an exacerbation injury within s 4(b)(ii), s 16 fixes the time at which it is deemed to have happened and identifies the employer by whom compensation in respect of that injury is payable. It does not confer any entitlement to compensation for permanent impairment.

The applicant submitted before the primary judge that in considering whether that causal connection had been established the Appeal Panel addressed a question which had already been decided by the Commission. Because the "injury" was one within s 4(b)(ii), the question of exacerbation had been determined and the only medical dispute was as to the degree of permanent impairment and whether there should be a deduction for any proportion of the impairment which was due to the pre-existing condition. The applicant also submitted that the assessment of the degree of permanent impairment could not have been referred for assessment under Part 7 of Chapter 7 unless the respondent's "liability" for the injury had already been determined by the Commission: WIM Act, ss 293(3)(a), 321(4)(a). The primary judge's rejection of these arguments is challenged by ground of appeal 1.

Because the Appeal Panel was not satisfied that the loss of vision resulted from the trauma injury, it was not necessary for it to assess whether a deduction should be made for any proportion of the impairment due to the pre-existing condition: cf WIM Act, s 323(1). The primary judge held that there was no constructive jurisdictional error in not doing so and rejected the applicant's argument to that effect: [2013] NSWSC 1290 at [38]. That holding is challenged by ground of appeal 3.

Finally, in support of his argument before the Appeal Panel that the trauma injury included the acceleration of the cataract condition, the applicant relied upon the opinion of Dr Chang that the trauma "may have caused the cataract to progress more quickly" if "the blow to the right eye" was "substantial". The Appeal Panel was not satisfied, having regard to the evidence of Dr Saks to which reference is made in [14] above, that the blow to the eye was substantial: [2013] NSWSC 1290 at [35].

Before the primary judge the applicant argued that the Appeal Panel had erred in asking whether the permanent impairment was caused directly by the trauma injury instead of asking whether it was caused by the exacerbation or aggravation of the existing condition. The primary judge rejected this argument upon the basis that the Appeal Panel had addressed the applicant's indirect causation argument: [2013] NSWSC 1290 at [43], [45]. By ground of appeal 4, the applicant challenges that conclusion. In his written and oral arguments in this Court the applicant also submitted that the primary judge had not considered one of the other bases on which he had contended there had been non-jurisdictional error on the face of the record. That basis was that the Appeal Panel's assessment that the blow to his right eye was not substantial involved an error of law because the record showed that there was no evidence to support it.

Disposition of the appeal

The principal issue raised by the proposed appeal concerns the meaning of the orders made on 21 November 2011 and in particular whether the "injury" referred to in order 3 is the trauma injury which occurred on 28 January 2009. Those orders are to be construed taking into account the circumstances in which they were made, at least to the extent that those circumstances were known to the parties: see Rogers v Wentworth (Court of Appeal (NSW), 18 April 1988, unrep) per Mahoney JA at 6-7 and Hope JA (with whom Samuels JA agreed) at 18; Beck v Weinstock [2012] NSWCA 289 at [76] (per Campbell JA, McColl and Meagher JJA agreeing) and cases there cited. Those circumstances include the communications between the parties and their representatives which preceded the referral of the dispute to the Commission, and the terms of the Application which referred that dispute.

Turning first to the terms of the orders. Order 3 refers to an injury to the right eye suffered on 28 January 2009 and order 4 remits the applicant's disputed claim for lump sum compensation for permanent impairment to the Registrar for referral to an approved medical specialist for assessment. The applicant initially argued that the "injury" referred to was that described in the Application, namely the exacerbation or aggravation of the existing cataract condition and the giant retinal tear and retinal detachment resulting from surgery which was necessitated by that exacerbation. In oral argument it was accepted that because the injury is described as suffered on 28 January 2009, any description of it could not include the retinal tear and detachment resulting from surgery which occurred subsequently. The question then became whether that injury referred only to an exacerbation of the pre-existing condition or, more generally, to the trauma injury received as a result of the direct blow to the right eye.

It is at this point that it is necessary to take account of the circumstances in which the consent orders were made. They included the communications between the parties describing the essence of their dispute and the legal context relating to that dispute, as provided by the provisions of the 1987 Act and the WIM Act.

The dispute was whether the injury to the applicant's eye, which undoubtedly occurred on 28 January 2009, also involved a material exacerbation of the cataract condition necessitating the surgery which occurred in June 2009. That dispute was as to the pathology of the injury which the applicant had sustained. In their exchanges the parties did not treat the injury as consisting only in the acceleration of a disease within s 4(b)(ii) and s 16 of the 1987 Act. There was good reason for that. In Rail Services Australia v Dimovski this Court (Handley JA, Hodgson JA and Young CJ in Eq) held, preferring and applying this Court's earlier decision in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606, that s 16 applies if the relevant injury only "consists in" the acceleration or exacerbation of a disease. Where, as in the present case, there is an event causing injury within s 4(a), the circumstance that the injurious event and injury included the aggravation of an existing disease does not mean that the injury, or some part of it, is an injury within s 16: Dimovski at [29] (Handley JA) and [68] (Hodgson JA). Rather the exacerbation or aggravation of the existing disease is part of the pathology of the injury within s 4(a).

The language of order 3 supports the conclusion that the "injury" being referred to was the trauma injury and its pathology. In terms, it is a determination that the applicant "suffered injury on 28 January 2009". That injury was a trauma injury, aspects of the pathology of which were in dispute and remained to be assessed. The medical dispute as to that pathology was, by order 3, to be assessed under Pt 7 of Chapter 7 of the WIM Act. If the position was otherwise, and the determination was that there had been an exacerbation injury, there would have been nothing of substance left for assessment because, as the earlier correspondence between the parties showed, it was not in issue that if the injury sustained on 28 January 2009 accelerated the need for the cataract surgery, the complications arising from that surgery including the subsequent retinal detachment and almost complete loss of vision, would have resulted from that injury.

For these reasons ground of appeal 2 should be rejected. The Appeal Panel and the primary judge did not err in construing the consent determination as being that the applicant had suffered a trauma injury to his right eye, the pathology of which remained to be assessed, and that the respondent was liable for that injury and its consequences.

It follows that grounds of appeal 1 and 3 also should be rejected. The Commission's determination was not that the applicant had suffered an injury within ss 4(b)(ii) and 16 of the 1987 Act. In particular there was no determination that the personal injury received by the applicant included or consisted in the acceleration or exacerbation of any existing disease. Having determined that the respondent was liable for the trauma injury, a dispute as to whether his loss of vision was "as a result of" that injury was a "medical dispute" within s 319(c) and (d) and the liability of the respondent for that trauma injury had been determined by the Commission: cf WIM Act, ss 293(3)(a), 321(4)(a). Because the Appeal Panel was not satisfied that the loss of vision was "as a result of" the trauma injury, it was not necessary for it to address whether there should be a deduction for any proportion of the impairment that was due to the pre-existing condition: cf WIM Act, s 323(1).

Ground 4 of appeal also should be rejected. The Appeal Panel did consider and reject the applicant's argument that the loss of vision was caused by the acceleration of the existing condition which itself was a work injury. Finally, the primary judge did not err in holding that there had not been any other non-jurisdictional error of law on the face of the record of the Appeal Panel. That record included the Appeal Panel's reasons: Supreme Court Act 1970 (NSW), s 69(4). The Appeal Panel's assessment that the blow was not substantial was based upon Dr Saks' evidence to which reference has been made. That report was information capable of supporting that conclusion. Two members of the Appeal Panel were medical specialists qualified to make such a conclusion on the basis of the information available to them. In doing so they were entitled to draw on their own knowledge, experience and expertise without the need for information or other expert opinions addressing those subjects. In these circumstances it cannot be said that, even if the common law "no evidence" principles apply to the medical assessment process, they could be invoked in this case. The primary judge did not address this argument, but there was no material error involved in her Honour's not having done so.

Conclusion

For the reasons given by Emmett JA, leave to appeal should be granted. The appeal should be dismissed with costs.

WARD JA: I have had the advantage of reading in draft the reasons of each of Meagher and Emmett JJA and I agree that, for the reasons articulated by each of their Honours, leave to appeal should be granted and the appeal dismissed with costs.

EMMETT JA: These proceedings are concerned with a claim by the applicant, Mr Jean Bindah, for compensation under the Workers Compensation Act1987 (NSW) (the Compensation Act) in respect of an injury suffered by him on 28 January 2009 in the course of his employment by the first respondent, Carter Holt Harvey Woodproducts Australia Pty Ltd (the Employer). At that time, Mr Bindah was employed by the Employer as a baler operator and forklift truck driver and sustained a direct blow to his right eye and cheek from the closing metal door of a waste recycling bin. Mr Bindah claims that the injury that he received resulted in permanent impairment and that he is entitled to be paid compensation for that permanent impairment by the Employer.

The Employer's insurer rejected Mr Bindah's claim for compensation for permanent impairment. That rejection led to an application to the Workers Compensation Commission of New South Wales (the Commission) in which Mr Bindah was ultimately unsuccessful. He commenced proceedings in the Supreme Court in relation to decisions made in connection with the unsuccessful application. Those proceedings were dismissed and Mr Bindah then commenced proceedings in this Court. Before dealing with the issues in the proceedings, it is desirable to say something about the statutory framework within which any entitlement of Mr Bindah to compensation would arise.

The Statutory Framework

The Commission is established by s 366 of the Workplace Injury Management and Workers Compensation Act1998 (NSW) (the Management Act). The Commission has and may exercise such functions as are conferred or imposed on it under any Act. Under s 105 of the Management Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under the Management Act and under the Compensation Act.

Section 9 of the Compensation Act relevantly provides that a worker who has received an injury is to receive compensation from the worker's employer in accordance with the Compensation Act. Under s 9A, no compensation is payable in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

Under s 66 as it existed at the time of Mr Bindah's injury, a worker who receives an injury that results in permanent impairment is entitled to receive, from his employer, compensation for that permanent impairment. Such compensation for permanent impairment is in addition to any other compensation under the Compensation Act. Section 65(1) of the Compensation Act relevantly provides that the degree of permanent impairment that results from an injury is to be assessed as provided by Part 7 of Chapter 7 of the Management Act. Under s 65(3) of the Compensation Act, if there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.

The term injury is defined for the purposes of the Compensation Act in s 4 of the Compensation Act. Section 4 provided at the relevant time as follows:

injury:

(a) means personal injury arising out of or in the course of employment,

(b) includes:

(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and

(c) does not include ... a dust disease, as defined ... , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

The term is defined in virtually identical terms for the purposes of the Management Act.

Section 16 deals with identifying the employer liable and the date of injury where the injury consists of the aggravation, acceleration, exacerbation or deterioration of a disease. In such a case, the injury is to be deemed to have happened, relevantly, at the time of the worker's incapacity and compensation is to be payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.

Under s 288 of the Management Act, any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, the Registrar may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that cannot be referred for determination by the Commission. The Commission may not hear or otherwise deal with any dispute if s 289 provides that the dispute cannot be referred for determination by the Commission.

Under s 289, a dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made disputes liability for the claim (wholly or in part), or fails to determine the claim as and when required by the Act. A dispute about a claim for medical expenses compensation cannot be referred for determination unless the person on whom the claim is made disputes liability for the claim (wholly or in part), or fails to determine the claim as and when required by the Act. A dispute about a claim for lump sum compensation cannot be referred for determination unless the person on whom the claim is made wholly disputes liability for the claim, or made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by the Act and one month has elapsed since the offer was made, or fails to determine the claim as and when required by the Act.

Section 293(1) relevantly provides that, when a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Pt 7, the Registrar may refer the medical dispute for medical assessment under Pt 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment. If the dispute concerns the degree of permanent impairment of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Pt 7 and must defer determination of the dispute by the Commission pending the outcome of that medical assessment. Further, the Registrar may not refer for assessment a medical dispute concerning permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.

Part 7 of Chapter 7 of the Management Act consists of ss 319 to 331. Under s 319, a medical dispute is, relevantly, a question about any of the following matters in connection with a claim:

(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.

Section 320 provides for the appointment of medical practitioners as approved medical specialists for the purposes of Pt 7. Under s 321, the Commission or the Registrar of the Commission (the Registrar) may refer a medical dispute to an approved medical specialist for assessment under Pt 7. Under s 324, the approved medical specialist assessing a medical dispute may consult with any medical practitioner who is treating or has treated the worker, call for the production of medical records and other information and require the worker to submit himself or herself for examination.

Under s 325, the approved medical specialist to whom a medical dispute is referred is to give a certificate (a Medical Assessment Certificate) as to the matters referred for assessment. Under 326, an assessment certified in a Medical Assessment Certificate is conclusively presumed to be correct (in any proceedings before a court or the Commission) as to various matters, including the degree of permanent impairment of the worker as a result of an injury and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality.

Under 327, a party to a medical dispute may appeal against a medical assessment under Pt 7, but only in respect of a matter that is appealable and only on the grounds for appeal under s 327. A matter is appealable under s 327 if it is a matter as to which the assessment of an approved medical specialist certified in a Medical Assessment Certificate is conclusively presumed to be correct. One of the available grounds for appeal under s 327 is that the Medical Assessment Certificate contains a demonstrable error.

Under 328, an appeal against a medical assessment is to be heard by an Appeal Panel constituted by two approved medical specialists and an arbitrator chosen by the Registrar. The appeal is to be by way of review of the original medical assessment. There are restrictions on the giving of fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against.

The Dispute in the Present Case

In July 2007, Mr Bindah had successful cataract surgery to his left eye. Normal vision was restored to the eye. The surgery was conducted by Dr Audrey Murugesan, Mr Bindah's treating ophthalmic surgeon. At that time, Mr Bindah had a cataract in his right eye that did not cause him any difficulty with his vision or require surgery.

Following the accident on 28 January 2009, Mr Bindah consulted Dr Sarya Saks, an eye surgeon. Dr Saks reported to Mr Bindah's general practitioner on 2 February 2009 that Mr Bindah's right eye demonstrated corneal abrasion with mild traumatic uveitis. Dr Saks reported that Mr Bindah was treated with drops and a topical steroid and that, on reviewing Mr Bindah on 2 February 2009, the abrasion and uveitis had resolved. Dr Saks advised Mr Bindah to continue with the topical steroid for a further five days. Dr Saks noted a long-standing dense cataract on the right side, giving rise to reduced vision. He said that Mr Bindah would eventually require cataract surgery for the right eye.

On 5 February 2009, the Employer submitted to its workers compensation insurer (the Insurer) an Injury Claim Report in respect of the accident on 28 January 2009. The form stated that Mr Bindah's right eye was affected and that he was injured when "a waste bin door hit him in his eye". On the same day, Mr Bindah submitted to the Insurer an Injury Claim Form in respect of the accident. The Injury Claim Form was completed by saying that the injury suffered by Mr Bindah was "redness and small cut under right eye". In response to the question as to what happened and how Mr Bindah was injured, the Injury Claim Form was completed as follows:

When walking out of waste bin door closed hitting me in the face (and right eye).

Mr Bindah said in the Injury Claim Form that he was "putting waste board into [the] bin" when he was injured.

On 9 June 2009, Mr Bindah returned to see Dr Murugesan because the vision in his right eye had recently deteriorated. Dr Murugesan told him that the cataract in his right eye had progressed and advised him to have cataract surgery. Mr Bindah underwent cataract surgery on 26 June 2009. The surgery resulted in complications and he was referred on the following day to Dr Andrew Chang, a vitreoretinal ophthalmologist. Dr Chang reported to Dr Murugesan on 1 July 2009 that Mr Bindah had presented "in the right eye with dislocated lens remnants during the course of cataract surgery". Dr Chang operated on 30 June 2009, when a sutureless vitrectomy was carried out and "the lens material retrieved". Dr Chang returned Mr Bindah to the care of Dr Murugesan after the operation.

The June 2009 operation appeared to have been successful. Mr Bindah had no further problems with his right eye until April 2010, when he again consulted Dr Murugesan. On 15 April 2010, Dr Murugesan wrote to Dr Chang, saying that, since the previous day, Mr Bindah had noticed that his vision had deteriorated to the extent that he could see only half of the visual field and that, on that day, he could not see anything at all. Dr Murugesan told Dr Chang that Mr Bindah had had "an injury to his right eye at work late last year that caused him to have a traumatic right cataract". Dr Murugesan was clearly mistaken as to the timing of the injury, which had been early in the previous year. Dr Murugesan said that Mr Bindah was myopic before surgery, so she was not sure whether "this retinal detachment is due to trauma from the injury or myopia". On 29 April 2010, Mr Chang reported to Dr Murugesan that Mr Bindah had presented with "a giant retinal tear and subtotal retinal detachment" in the right eye. Dr Chang said that that had been repaired "with vitrectomy surgery and temporary tamponade with heavy liquid".

On 10 June 2010, Mr Bindah submitted a Recurrence Claim Form to the Insurer, containing "supplementary information ... in respect of a claim for compensation for a recurrence of a previous injury". The Recurrence Claim Form described the nature of the original injury as "bruising right eye" and the date of recurrence as 15 April 2010. The Recurrence Claim Form said that the recurrence occurred when Mr Bindah "suddenly lost complete vision of the right eye" when he was doing "normal duties". The form described his injury condition as:

Right eye giant retinal tear and subtotal retinal detachment.

On 13 July 2010, Dr Peter Duke, ophthalmic surgeon, reported to the Insurer that he had examined Mr Bindah on 24 June 2010. Dr Duke reported that his findings on examination, together with the history provided by Mr Bindah and accompanying medical documentation, confirmed "the industrial blunt injury [to the] right lower eyelid". Dr Duke referred to a history of "blunt trauma at work" on 28 January 2009 with "skin laceration [on the] right lower eyelid", "bilateral lens cataract surgery" and "right retinal detachment with a giant tear".

Dr Duke reported as follows:

... the giant tear may remotely be a consequence of the blunt trauma to right lower eyelid with laceration of skin ... due to associated countrecoup [sic] concussive type injury with vitreous traction.

... It is not likely that a worker can suffer [a] giant retinal tear and subtotal retinal detachment after such an incident at work with no report of significant visual or eye problems post injury.

It is more likely that the cataract surgery of the right eye has caused his ongoing symptoms with secondary giant retinal tear and retinal detachment. ...

The bilateral cataracts are quite unlikely to be associated or related in any way to the workplace incident.

I am of the opinion that the cataract surgery with associated vitreoretinal traction is the far more likely cause of the giant tear and retinal detachment in an eye constitutionally predisposed rather than any causal factor related to the workplace incident of 28/1/2009.

On 14 July 2010, the Insurer wrote to Mr Bindah saying that it had decided to decline liability for his claim for compensation for the recurrence of injury to his right eye. The letter said that the decision had been made because the information then on the file indicated that "the injury of right eye of giant retinal tear, subtotal retinal detachment and loss of vision to the right eye" is not a workplace injury within the meaning of s 4 and s 9A of the Compensation Act. The Insurer said that the information that supported the decision to decline the claim for compensation was the report of Dr Duke of 13 July 2010.

On 1 December 2010, Dr Chang reported to Mr Bindah's solicitors concerning his treatment of Mr Bindah. After describing the surgery in June 2009 and April 2010, Dr Chang said that Mr Bindah had continued to develop retinal scarring, which had resulted in "further redetachment of the retina" requiring further surgery in May and June 2010. Dr Chang then said:

Mr Bindah has subsequently given me the history that he was struck by a lid of a bin in January of 2009. If the blow to the right eye was substantial this may have caused the cataract to progress more quickly. I believe that the subsequent severe retinal detachments are more attributed to the myopia and previous surgeries rather than the trauma in January in 2009.

On 28 March 2011, Dr Michael Delaney, an ophthalmic surgeon, examined Mr Bindah and reported on that examination to Mr Bindah's solicitors. Dr Delaney's report included the following:

Based on the history of significant trauma to the right eye and a subsequent deterioration in the vision due to progression of the cataract, which had been asymptomatic prior to the incident at work in January 2009 and the need for cataract surgery by June 2009, I believe there must be a direct connection between the two events. I believe that the incident at work on 28 January 2009 served to exacerbate a preexisting cataract, necessitating its surgery. Due to the inherent nature of this cataract complications were experienced, which involved a dropped nucleus and the subsequent need for a vitrectomy. It is likely that this complication played a significant role in the development of the giant retinal tear and detachment.

There is therefore a direct link between the incident at work, which was a substantial contributing factor, through to the development of the giant retinal tear by the exacerbation of the cataract and the need for subsequent cataract surgery in an eye that was predisposed to complications by the inherent nature of the cataract.

Dr Delaney summarised Mr Bindah's injuries as follows:

Mr Bindah suffered a blunt trauma to his right eye in the incident noted above. This trauma exacerbated a preexisting cataract and as a result of this exacerbation of the cataract he required cataract surgery, but unfortunately suffered complications, which then predisposed him to the development of his retinal detachment.

On 2 May 2011, Mr Bindah's solicitors wrote to the Insurer requesting a review of the Insurer's decision of 14 July 2010. The solicitors attached Dr Delaney's report of 28 March 2011, together with an assessment of permanent impairment of vision by Dr Delaney of the same date. Dr Delaney assessed the whole person impairment due to the effects of the injuries sustained to Mr Bindah's visual system as 22 percent. The solicitors said that Mr Bindah's almost complete loss of vision in his right eye appeared to have been caused by retinal detachment and that the retinal detachment appeared to have been caused during surgeries that took place following the exacerbation or aggravation of his pre-existing cataract condition following the work injury of 28 January 2009. The Insurer responded on 18 May 2011, saying that it had decided to uphold the original decision of 14 July 2010.

On 11 July 2011, Dr Murugesan reported on Mr Bindah's medical history to his solicitors. After describing the cataract surgery on the left eye in July 2007, she said that from November 2007 until June 2009, Mr Bindah did not present to her with any visual problems. She then described the surgery in June 2009, a subsequent examination of Mr Bindah in February 2010 and the event of 15 April 2010, when she sent him to see Dr Chang. She ended her report by saying that it was hard for her to ascertain whether the trauma of 28 January 2009 caused the cataract and retinal detachment to form in Mr Bindah's right eye. She said, however, that trauma was well documented as a cause of cataract formation and retinal detachment.

On 22 July 2011, Mr Bindah's solicitors wrote to the Insurer again, saying that Mr Bindah's position was that his work injury on 28 January 2009 caused a material aggravation to his pre-existing right eye cataract, which caused it to require surgery, following which Mr Bindah suffered retinal detachment that had led to near complete loss of vision in that eye. The letter said that, but for the injury on 28 January 2009, Mr Bindah may not have required cataract surgery at that time and may not have suffered the complications associated with that surgery. The solicitors attached Dr Muguresan's report of 11 July 2011, together with clinical files of Dr Saks and Dr Murugesan.

The solicitors' letter of 22 July 2011 asserted that it was apparent that Dr Duke had not provided consideration to the possibility that the progression of the cataracts was associated with the blunt trauma to the right eye. The letter said that Dr Duke clearly expressed an opinion that the cataracts themselves were not associated with the workplace incident, but did not go so far as to say that the blunt trauma did not cause an aggravation, acceleration, exacerbation or deterioration of the pre-existing cataract condition. The letter accepted that the surgery may have been the more likely cause of the tear that had caused the ongoing problems, but suggested that the need for the cataract surgery arose out of the workplace incident and therefore that there was a clear definitive causal link between the two events. The solicitors requested that the Insurer again review the matter.

On 9 August 2011, the Insurer replied to the solicitors' letter of 22 July 2011, saying that it was not convinced, "on the balance of probabilities", that the injury of 28 January 2009 caused the need for the cataract surgery. The Insurer noted that Mr Bindah had had long-standing difficulties with his right eye and that he had had left eye cataract surgery on 2 July 2007. The Insurer referred to the fact that, on 15 August 2007, Dr Murugesan had recommended that he consider right eye cataract surgery, noting that posterior polar cataracts were renowned for having a high complication rate of a dropped nucleus. The Insurer said that it was not convinced that the trauma to the right eye in January 2009 aggravated the pre-existing right eye cataract and led to the requirement for surgery.

The Dispute in the Commission

On 24 August 2011, Mr Bindah lodged with the Commission an Application to Resolve a Dispute. The Application stated that the claim to which the dispute related was for referral, for determination by the Commission under s 288 of the Management Act, of claims for weekly benefits, medical expenses, lump sum compensation and compensation for pain and suffering. Although the form provided for referral for medical assessment of lump sum compensation (under s 293 of the Management Act) where the degree of permanent impairment was in dispute, Mr Bindah did not indicate on the form that there was such a claim.

Part 4 of the Application required "Injury Details". The following details were given:

Date of injury: 28 January 2009

Injury description: 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.

Describe how injury occurred: See applicant's statement for details. Essentially the applicant sustained a direct blow to the right eye by a closing metal door weighing 180 kg (approx).

In Part 5 of the Application, Mr Bindah set out the details of his claim. In section 5.1, he claimed weekly benefits compensation of $1,062.60 from "15 April 2010 to date and continuing". In section 5.3, he claimed medical, hospital and rehabilitation expenses of $3,335.07 for "specialists, general practitioner, optometrists, medications and Medicare charge". In section 5.6, he claimed $35,750 for permanent impairment and $30,000 for pain and suffering. The amount of $35,750 was for 22% whole person impairment of his visual system.

On 15 September 2011, the Employer submitted to the Commission its Reply to Mr Bindah's Application. In Pt 3 of the Reply, dealing with "Matters in Dispute", the Employer sought to include the following:

That the Applicant did not receive an injury at all or as alleged or employment was not a substantial contributing factor to the injury suffered by the Applicant.

That the Applicant is not incapacitated at all or as alleged, or that the Applicant is in receipt of weekly benefits at an appropriate rate.

That any incapacity suffered by the Applicant is not related to any injury at work.

...

That the Applicant does not suffer any permanent impairment [o]r Whole Person Impairment as alleged or at all.

...

On 21 November 2011, a conciliation conference took place, in which the parties were assisted by an arbitrator. The arbitrator then issued a Certificate under s 294 of the Management Act recording an agreement between the parties and a Determination of the Commission as follows:

1. Award respondent in respect to the applicant's claims for weekly payments compensation.

2. Respondent to pay the applicant's expenses under s 60 of the [Compensation Act] upon production of accounts receipts and notice of Medicate Charge.

3. The applicant suffered injury on 28 January 2009 to his right eye and the respondent has liability in respect to injury.

4. The matter is remitted to the Registrar for referral to approved medical specialist.

The Registrar may refer the applicant to attend a medical examination by an approved medical specialist (AMS) as arranged by the Commission. ... if so, the AMS referral request will note matters including the following agreed by the parties:

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

...

5. Respondent to pay applicant's costs as agreed or assessed. Matter is certified as complex with a 20% uplift in costs ...

The Medical Assessment Certificates

As contemplated by the arbitrator's Determination, the Registrar referred the matter to Dr Peter Anderson, an approved medical specialist. On 29 February 2012, Dr Anderson issued a Medical Assessment Certificate. In the Certificate, Dr Anderson set out a brief history of "the incident/onset of symptoms and of subsequent related events, including treatment". Dr Anderson then stated his opinion that the trauma suffered by Mr Bindah on 28 January 2009 was not significant, since he was back at work on 2 February 2009 or a day or so afterwards. He said that the trauma suffered did not appear to be "that significant" and referred to the fact that there was a cataract already present in Mr Bindah's right eye when he was seen by Dr Saks. Dr Anderson then answered two of several pro forma questions as follows:

(b) Have all body parts stabilized/reached maximum medical improvement? Yes.

(e) Is any proportion of loss of efficient use or impairment of whole person impairment, due to a pre-existing injury, abnormality or condition? No.

Dr Anderson said that the facts on which he based his assessment of whole person impairment were derived from the history given to him. His opinion and assessment of whole person impairment was as follows:

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.

In making that assessment I have taken account of [the letter from Dr Duke of 13 July 2010 and the letters of Dr Delaney of 28 March 2011].

Other pro forma questions in the form of the Medical Assessment Certificate (including one that asked Dr Anderson to provide "my brief comments regarding the other medical opinions and findings submitted by the parties") were left blank by Dr Anderson. Dr Anderson's intention in stating his opinion in those terms is not entirely clear. That is to say, while he agreed with Dr Delaney's assessment of whole person impairment of 22 percent, he agreed with Dr Duke that the trauma associated with the surgery, rather than the initial trauma of 28 January 2009, was the more probable cause of the loss of vision.

On 28 March 2012, the Employer lodged an Application to Appeal against the decision of Dr Anderson. In its submissions in support of that Application, the Employer noted that there was no dispute that Mr Bindah suffered "injury" by way of trauma to his cheek and right eye in an incident in the course of his duties on 28 January 2009. The submissions then outlined the circumstances concerning the subsequent treatment of Mr Bindah and said that the Employer did not take issue with the overall assessment of 22 percent made by Dr Anderson as reflective of the overall loss of vision in Mr Bindah's right eye. The submissions said, however, that, having regard to the findings of Dr Anderson to the effect that the "injury" on 28 January 2009 was minor in nature and not responsible for the long-standing cataract or subsequent surgery and complications that led to the substantial loss of vision, Dr Anderson ought to have assessed the whole person impairment arising out of the injury in question at 0 percent. Therefore, the Employer submitted, Dr Anderson's overall assessment of 22 percent whole person impairment represented a demonstrable error or use of incorrect criteria and his Medical Assessment Certificate should be set aside.

On 18 April 2012, Mr Bindah lodged a Notice of Opposition to the Employer's Application to Appeal against the decision of Dr Anderson. Mr Bindah's attached submissions said that the Employer's submissions did not raise any grounds of appeal and relied on the fact that Dr Anderson had answered "No" to the question of whether any proportion of loss of efficient use or impairment or whole person impairment was due to a pre-existing injury, abnormality or condition. Mr Bindah submitted that it was not open to Dr Anderson to determine whether the injury occurred and that he would have erred if he had have attempted to do so. Mr Bindah also submitted that agreement had been reached by the parties at conciliation, which included the acceptance of injury to the right eye on 28 January 2009 and referral to an approved medical specialist to determine the percentage impairment. He submitted that it was not in issue that the trauma was significant or insignificant, that it was accepted that the trauma had caused injury and that the degree of impairment that flowed from that injury was merely an assessment of his current loss of vision. Therefore, Mr Bindah submitted, the appeal should be dismissed.

Section 329 of the Management Act relevantly provides that a matter referred for assessment under Pt 7 may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration. On 20 April 2012, the Registrar returned the Medical Assessment Certificate of 29 February 2012 to Dr Anderson for reconsideration pursuant to that provision. On 11 May 2012, Dr Anderson said that he did not feel that reconsideration was necessary, but that he wished to amend his Medical Assessment Certificate to 0 percent impairment because he felt that the detachment was not due to the trauma, but was due to the operation for removal of the cataract. On 8 June 2012, Dr Anderson issued a second Medical Assessment Certificate giving his evaluation of permanent impairment, assessment and reasons as follows:

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

c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

Not applicable.

d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable

Not applicable.

The second Medical Assessment Certificate is expressed somewhat infelicitously. A fair reading of it suggests that it states Dr Anderson's opinion that trauma from the original cataract operation was the cause of the loss of vision and that the assessment of whole person impairment should be 0 percent because the impairment is due to the operation. Dr Anderson appears to be saying that he made a mistake in his original report insofar as he agreed with Dr Delaney's assessment that Mr Bindah had whole person impairment of 22 percent. That is to say, Dr Anderson appears to be saying that, while he agreed with Dr Delaney that there was a 22 percent whole person impairment by reason of the loss of vision, that impairment was not the result of the incident that occurred on 28 January 2009.

Dr Anderson's second Medical Assessment Certificate prompted Mr Bindah to lodge with the Commission on 14 June 2012 an Application to Appeal against Dr Anderson's decision of 8 June 2012. In his submissions in support of that appeal, Mr Bindah said that the second Medical Assessment Certificate contained demonstrable error in that it failed to provide any reason or explanation as to how Dr Anderson provided an assessment of 0 percent following his earlier finding of 22 percent whole person impairment.

Mr Bindah's submissions said that there was no dispute that Mr Bindah suffered injury by way of "frank trauma to the right eye" in an incident on 28 January 2009 and that that injury was not in dispute. He submitted that the question before the Commission was whether the trauma to the eye on 28 January 2009 caused or contributed to the exacerbation or aggravation of a pre-existing cataract condition necessitating surgery. He said that, if that was answered in the affirmative, any complications from that surgery, such as loss of vision, was part of the compensable injury.

Mr Bindah submitted that the second Medical Assessment Certificate should be set aside and the matter remitted to an Appeal Panel to determine subsequent issues. He said that, if the Appeal Panel found that there was a causative link between the need for surgery and the blunt trauma to the eye on 28 January 2009, then any subsequent loss of vision caused by any complications from the surgery would be part of the compensable injury and assessable for whole person impairment. He said that it would then be open to the Appeal Panel to determine whether further evaluation of Mr Bindah's visual system was required or alternatively to accept the findings of 22 percent whole person impairment, subject to an explanation as to why there may or may not be a deduction under s 323.

On 21 June 2012, the Employer lodged with the Commission a Notice of Opposition to Mr Bindah's Application to Appeal. The Employer confirmed, in its submissions attached to the Notice of Opposition, that there was no dispute that Mr Bindah had suffered "injury" by way of trauma to his cheek and right eye in an incident in the course of his duties on 28 January 2009. The Employer said that it did not take issue with the overall assessment of 22 percent whole person impairment made by Dr Anderson as reflective of the overall loss of vision in Mr Bindah's right eye. However, the Employer submitted, having regard to the findings of Dr Anderson to the effect that the "injury" on 28 January 2009 was minor in nature and not responsible for the long-standing cataract or subsequent surgeries and complications that led to the substantial loss of vision, Dr Anderson had correctly assessed the whole person impairment arising out of the injury in question at 0 percent.

On 19 July 2012, the Registrar referred Mr Bindah's appeal to an Appeal Panel, under s 327(4) of the Management Act. On 8 October 2012, the Appeal Panel made a decision that the second Medical Assessment Certificate of Dr Anderson of 8 June 2012 should be confirmed.

The Appeal Panel's Reasons

In its statement of reasons for its decision of 8 October 2012, the Appeal Panel said that the reason given by Dr Anderson for his change of heart appeared to be that he adopted the reasoning given by Dr Duke, who found, as did Dr Delaney and Dr Anderson, that the diagnosis was of a pseudophakic right eye that had undergone recent surgery to correct a giant retinal tear with retinal detachment. The Appeal Panel said that, whilst Dr Duke thought that the giant tear might remotely be a consequence of the blunt trauma that Mr Bindah suffered in the incident on 28 January 2009, it was not likely that it would cause a giant retinal tear and subtotal retinal detachment. Rather, Dr Duke thought that it was more likely that the cataract surgery in the right eye had caused the ongoing symptoms.

The Appeal Panel referred to Dr Duke's opinion that the cataract surgery with associated vitreoretinal traction was the far more likely cause of the giant tear and retinal detachment in an eye that was constitutionally predisposed, rather than any causal factor related to the workplace incident on 28 January 2009. The Appeal Panel referred to Mr Bindah's submission that Dr Anderson had made an error in his Medical Assessment Certificate of 29 February 2012, when he expressed the opinion that the trauma suffered on 28 January 2009 was not significant, as Mr Bindah was back at work on 2 February or a day or so after that and that the trauma he suffered did not appear to be that significant. The Appeal Panel referred to Mr Bindah's submission that Dr Anderson was incorrect in finding that the trauma suffered was not significant. However, having considered the evidence, the Appeal Panel agreed with Dr Anderson that the trauma suffered was not sufficient to have caused a retinal detachment more than a year later.

Nevertheless, the Appeal Panel said, the question posed by Dr Anderson was the wrong question and the relevant issue was whether the medical treatment given to Mr Bindah as a result of the employment injury caused the later retinal detachment. The Appeal Panel then examined the evidence in some detail. Although Dr Murugesan gave some faint support to the proposition that the retinal detachment had been caused by the blow to the eye, the Appeal Panel thought that the better view was that expressed by Dr Duke, Dr Chang and Dr Delaney. The Appeal Panel referred to Dr Chang's letter to Mr Bindah's solicitors of 28 June 2011, in which he said as follows:

I believe that a cataract is likely to have progressed more quickly following a blow to the right eye. I believe that the subsequent retinal detachment in the form of a giant retinal tear may be caused by myopia and previous surgeries rather than the blow that was received to the right eye in January of 2009. I would expect that if the cause of a giant retinal tear is secondary to trauma, that this is likely to occur within several months of the injury, not delayed for over 18 months.

The Appeal Panel was not convinced that the subsequent retinal detachment and giant retinal tear were caused by the trauma on 28 January 2009. They noted that Dr Murugesan had, 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 Appeal Panel considered that the contemporaneous notes of Dr Saks made both possibilities unlikely and that the blow to the eye caused a corneal abrasion and mild uveitis, which had resolved within five days.

The Appeal Panel observed that the cataract was already present, but noted the view of Dr Chang that the cataract was likely to have progressed more quickly following the blow to the right eye. They referred to Dr Chang's opinion that the blow on 28 January 2009 accelerated the progress of the cataract, but were satisfied that the condition of Mr Bindah was one of a person suffering from a disease process.

The Appeal Panel said that, if they 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 Mr Bindah would have established an entitlement under s 16 of the Compensation Act. However, they went on to note that, following the cataract surgery in 2009, Mr Bindah enjoyed reasonable vision until the retinal detachment and tear occurred spontaneously in April 2010. They considered that the passage of time between the surgery and the retinal detachment was such that the detachment was too remote from the subject injury to implicate the blow to the eye as being directly responsible for the detachment.

The Appeal Panel noted that it was common ground that the retinal detachment was the result of the surgery on 29 and 30 June 2009 and that it had not been argued that there was a direct causal link between the trauma of 28 January 2009 and the retinal detachment. They referred to Dr Delaney's opinion in his report of 28 March 2011 that the need for cataract surgery was caused or exacerbated by the injury at work and that the operation of 30 June 2009 and its complications caused or exacerbated the retinal detachment. However, on a close analysis of the evidence, the Appeal Panel was unable to agree with that opinion of Dr Delaney.

The Appeal Panel said that the critical evidence was that of Dr Saks in two respects. First, Dr Saks found the injury to the right eye on 28 January 2009 to be minor. He found a small superficial corneal abrasion, a mild conjunctival infection and only a few cells in the anterior chamber, and the eye healed in a few days. The Appeal Panel observed that, if the injury had been severe enough to cause damage to Mr Bindah's lens, the corneal damage and surrounding eye damage would have been much more significant. Secondly, Dr Saks diagnosed an advanced cataract in the right eye with markedly reduced vision, which was pre-existing. Dr Saks did not say that the cataract was traumatic in nature and commented that he expected that it would require an operation in the future.

The Appeal Panel observed that Dr Chang did not have the benefit of Dr Saks's findings when he gave his opinion. Although his opinion of 28 June 2011 made a causal connection, in his earlier report of 1 December 2010 he had made an important qualification when he said:

If the blow to the right eye was substantial this may have caused the cataract to progress more quickly.

The Appeal Panel found that the blow to Mr Bindah's eye itself was not substantial. Thus, the underlying condition of Dr Chang's opinion was not satisfied. Accordingly, the Appeal Panel confirmed the Medical Assessment Certificate of 8 June 2012.

The Proceedings in the Supreme Court

By summons filed on 16 April 2013, Mr Bindah claimed:

an order in the nature of certiorari quashing the whole of the decision made by the Appeal Panel on 8 October 2012 and quashing the Medical Assessment Certificate issued by Dr Anderson on 8 June 2012;
a declaration that the decision of the Appeal Panel and the Medical Assessment Certificate of 8 June 2012 are void;
an order remitting the matter to the Registrar to constitute an Appeal Panel to determine the matter according to law.

The defendants in the proceedings were the Employer, the members of the Appeal Panel and the Registrar. On 11 September 2013, for reasons published on that day, an Associate Justice of the Supreme Court ordered that the summons be dismissed and ordered Mr Bindah to pay the Employer's costs. The Appeal Panel and the Registrar had both submitted to such orders as the Court may make, except as to costs.

On 9 October 2013, Mr Bindah filed a summons seeking leave to appeal from the orders made on 11 September 2013. Leave to appeal is required because the amount of compensation in issue is less than $100,000. A direction has been given that the appeal, if leave is granted, be heard concurrently with the application for leave. The Employer opposes the grant of leave.

The Appeal

In his draft notice of appeal, Mr Bindah seeks orders that the appeal be allowed and that the orders made on 11 September 2013 be set aside. In lieu of those orders, he seeks the orders claimed in the summons of 16 April 2013. However, in the course of oral argument, Mr Bindah indicated that the fifth prayer for relief would be amended to claim simply an order remitting the matter to the Registrar.

The grounds of appeal in the draft notice of appeal are that the primary judge erred in failing to make the following findings or holdings:

(1) The Appeal Panel fell into jurisdictional error by asking itself the wrong question and misconceiving its function, in that it determined whether Mr Bindah's permanent impairment was caused by the work injury, when the issue of liability was properly the function of an arbitrator and had been determined by the Certificate of Determination of 21 November 2011 and was, therefore, not a matter capable of referral to an approved medical specialist under s 321 of the Management Act or of appeal to an Appeal Panel under s 327 of the Management Act;

(2) Order 3 made in the Certificate of Determination of 21 November 2011 should be construed as referring to an injury consisting of exacerbation or aggravation of a pre-existing cataract condition necessitating surgery in the right eye, as described in the Application lodged on 24 August 2011, rather than as referring to the frank injury to the eye from the blow on 28 January 2009;

(3) The Appeal Panel made a constructive jurisdictional error in failing to address and apply the test referred to in s 323 of the Management Act, as to whether there should be a deduction for any proportion of the impairment of Mr Bindah's vision that was due to his pre-existing cataract condition;

(4) In the alternative to grounds (1), (2) and (3), there was a non-jurisdictional error of law on the face of the record by reason of the misapplication by the Appeal Panel of the test of causation.

Much of the argument concerned the second ground, namely, the proper construction and effect of Order 3 of the Certificate of Determination of 21 November 2011, which was made by consent. It is desirable, therefore, to deal with that ground first, since the other grounds depend to a greater or lesser extent on the effect of that order.

Ground 2: The Effect of Order 3 of 21 November 2011

The question raised by the second ground is whether the words "suffered injury on 28 January 2009 to his right eye", where used in Order 3, should be understood as a reference to a frank injury to the right eye, or to an injury consisting of an exacerbation of the pre-existing cataract, as claimed in the Application of 24 August 2011. Mr Bindah contends that the primary judge erred in construing the words as referring to the frank injury, rather than to an exacerbation.

The Certificate of Determination of 21 November 2011 must be construed in the light of the circumstances surrounding the making of the orders, including the legal framework within which the dispute arose that led to the making of the orders. Of course, where reasons are given for the making of particular orders, those orders should be construed in conformity with the reasons (see generally AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 at [98] - [104]). In the present case, however, because the Determination was made by consent, there were no reasons for the making of the orders. Mr Bindah submits that even in this case, the context surrounding those orders can be considered as an aid to their construction (citing Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567 at [38] - [45]).

It is clear from the communications between Mr Bindah, on the one hand, and the Employer and the Insurer, on the other hand, that there was a dispute between them, prior to the filing of the Application of 24 August 2011, as to whether there was a causal connection between the incident that occurred on 28 January 2009 and the need for cataract surgery in June 2009. The Insurer's letter of 14 July 2010, in reliance on Dr Duke's report of 13 July 2010, stated that the cataract surgery was a far more likely cause of the giant tear and retinal detachment, in an eye that was constitutionally predisposed, than was the workplace incident on 28 January 2009.

While Dr Chang's report of 1 December 2010 indicated that "if the blow to the right eye was substantial this may have caused the cataract to progress more quickly" (emphases added), it also indicated that he believed that the subsequent severe retinal detachments were more attributable to the myopia and previous surgeries than to the trauma in January 2009.

In response to Dr Delaney's opinion of 28 March 2011 that the incident at work on 28 January 2009 served to exacerbate a pre-existing cataract, thereby necessitating its surgery, the Insurer indicated, in its letter of 18 May 2011, that the reports from Dr Murugesan in 2007 were evidence that cataract surgery to Mr Bindah's right eye would have occurred regardless of the incident on 28 January 2009. Following the request from Mr Bindah's solicitors of 22 July 2011 to review the matter again, in the light of the further report of Dr Murugesan of 11 July 2011, the Insurer said, on 9 August 2011, that it was not convinced, on the balance of probabilities, that the injury of 28 January 2009 caused the need for the cataract surgery, which led to the subsequent retinal detachment. The Insurer said that it was not convinced that the trauma to the right eye in January 2009 aggravated the pre-existing right eye cataract, thereby leading to the requirement for surgery, following which Mr Bindah suffered retinal detachment.

That is the background to the dispute that was the subject of Mr Bindah's Application lodged with the Commission on 24 August 2011. The Employer's Reply to that Application, lodged on 15 September 2011, disputed that any incapacity suffered by Mr Bindah was related to any injury at work. The orders of 21 November 2011 must be construed in the light of the dispute that was thereby referred to the Commission.

Order 3 recorded that Mr Bindah had suffered injury to his right eye on 28 January 2009. It also recorded that the Employer had liability "in respect to injury". There was no hearing leading to a considered decision as to the nature of that injury. There is no basis for concluding that Order 3, made by consent, was intended to accept the assertion made in the Application of 24 August 2011 that the trauma of 28 January had exacerbated the cataract in Mr Bindah's right eye.

The use of the word injury must be understood in the context of the statutory framework provided by the Compensation Act and the Management Act. Thus, under s 4 of the Compensation Act, injury is defined to mean personal injury, and to include, relevantly, the aggravation, acceleration, exacerbation or deterioration of any disease. However, it must be shown that the injury arose out of or in the course of employment, and, in the disease situation just referred to, that the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.

Mr Bindah contends that where an injury consists of aggravation, acceleration, exacerbation or deterioration of a disease, the Commission determines liability on the basis of s 16 and the conditions of s 9A. Thus, he says, those interlocking provisions, as they existed at the relevant time, indicate that an injury is compensable only if it results from the employment and that aggravation, acceleration, exacerbation or deterioration of a disease is compensable only if the employment was a substantial contributing factor.

The object of s 16 is to provide a worker with recourse against one employer, in circumstances where there are several employers whose employment of the worker substantially contributes to the aggravation, acceleration, exacerbation or deterioration of a disease. When a worker is injured in the course of employment, there is no reason why a different employer who employs the worker later should be liable to compensate the worker for his earlier injury, simply because the earlier injury aggravated a pre-existing disease, which was subsequently further aggravated by conditions of employment when the worker was employed by the later employer. That object is achieved if the phrase "consists in the aggravation, acceleration, exacerbation or deterioration of a disease" in s 16 is construed as referring to an injury by aggravation, but not to a personal injury that aggravates the effects of a previously existing disease. That is to say, s 16 is confined entirely to aggravation injuries (see Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 at 616 and Rail Services Australia v Dimovski [2004] NSWCA 267 at [68] and [85]). The contrary construction could lead to a result in which a frank injury, which happened to aggravate a disease but which caused incapacity that did not commence immediately, would be deemed under s 16(1)(a) to have happened at some time other than the time when it in fact happened (see Dimovski at [68]).

It was common ground that Mr Bindah had suffered personal injury in the course of his employment by the Employer. However, it was clearly not common ground that his employment had been a contributing factor to any aggravation, acceleration, exacerbation or deterioration of disease consisting of a cataract in his right eye. In his Application of 24 August 2011, Mr Bindah claimed benefits under three heads as follows:

weekly compensation from 15 April 2010 of $1,062.60;
medical, hospital and rehabilitation expenses in the sum of $3,335.07;
lump sum compensation for permanent impairment, including pain and suffering, in the sum of $65,750.

The consent Determination of 21 November 2011 involved a rejection of the claim for weekly benefits compensation (in Order 1) and an acceptance of the medical, hospital and rehabilitation expenses (in Order 2), subject to production of accounts, receipts and notice of Medicare charge. That left for referral to an approved medical specialist the dispute as to whether or not any whole person impairment of Mr Bindah's visual system was attributable to the injury to his right eye on 28 January 2009.

There is nothing in the communications that led up to the compromise recorded in the orders by consent to indicate that by those orders, the Employer or the Insurer was accepting that an exacerbation of the cataract in Mr Bindah's right eye had resulted from the incident on 28 January 2009. Rather, they were accepting that there was a liability for an injury that occurred on 28 January 2009. The effect of Order 3 was simply that the prohibition in s 293(3)(a) of the Management Act no longer operated to preclude the referral to an approved medical specialist, as contemplated by the consent Determination. Section 293(3) prohibits the Registrar from referring for assessment a medical dispute concerning permanent impairment where liability is in issue and has not been determined by the Commission.

The language of Order 3 should be construed as doing no more than recording acceptance by the parties that the Employer was liable for compensation for permanent impairment, if an approved medical specialist appointed by the Registrar determined that any permanent impairment suffered by Mr Bindah was the result of the incident that occurred on 28 January 2009, when he sustained a direct blow to his right eye by a closing metal door, as described in the Application of 24 August 2011. Order 3 should not be construed as a determination that that incident caused the impairment that he now suffers.

Ground 1: Whether the Appeal Panel asked the Wrong Question

Mr Bindah contends that the primary judge erred in concluding that the question of whether permanent impairment is caused by an injury is not a factual or legal issue that must be determined by an arbitrator but is part of a medical dispute that may be determined by an approved medical specialist or an Appeal Panel. He contends that that conclusion is inconsistent with the statutory scheme.

Generally, the scheme for the settlement of compensation disputes established by the Management Act, read in conjunction with the Compensation Act, is to have factual and legal issues resolved by an arbitrator, subject to an appeal to a President or Deputy President of the Commission, and to have certain medical issues decided by an approved medical specialist, subject to an appeal to an Appeal Panel. That scheme is designed to ensure that the degree of permanent impairment that results from injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition, are assessed in accordance with Pt 7 of Ch 7 of the Management Act, and not otherwise. If there is a medical dispute within the meaning of that term in s 319 of the Management Act, an arbitrator would have no jurisdiction to decide it. However, an arbitrator may refer such a medical dispute for assessment by an approved medical specialist under s 321. Section 321 confers a power that, in a proper case, an arbitrator is bound to exercise in aid of the private rights of the parties. Thus, because an arbitrator has no jurisdiction to decide a medical dispute, an arbitrator has no jurisdiction to make findings that are binding on an approved medical specialist or on an Appeal Panel. A finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (see Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19] - [21]).

However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of "medical dispute". Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).

It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act. However, that jurisdiction is subject to the restriction contained in s 65(3) of the Compensation Act, which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that a medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7.

The reference in s 65(3) of the Compensation Act to a dispute about the permanent impairment of an injured worker includes a dispute about the degree of permanent impairment that results from an injury, since that is the only type of relevant assessment that can be made under Pt 7 of Ch 7 of the Management Act. The Commission cannot award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist. It follows that the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the approved medical specialist or, on appeal, the Appeal Panel. It is not a matter for determination by an arbitrator. Thus, it would not have been open for the arbitrator who made the consent Determination to determine, even by consent, that any degree of permanent impairment resulted from an exacerbation of the pre-existing cataract condition. That is a matter wholly within the jurisdiction of an approved medical specialist or an Appeal Panel.

Mr Bindah contends that the question whether an impairment is due to a work injury is not a matter that can be the subject of a medical dispute that can be referred to an approved medical specialist. He says 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 (see Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 at [125]). Section 322 deals with some procedural matters relating to the assessment of the degree of permanent impairment of an injured worker. The trial judge in the present proceedings, Harrison AsJ, distinguished between an injury that was an aggravation of a pre-existing disease (thus falling within s 4(b)(ii) of the Compensation Act) and an injury falling within s 4(a) of the Compensation Act, as in the present case, which does not consist of an aggravation, acceleration, exacerbation or deterioration of a disease.

Mr Bindah submits that such a distinction ought not to be accepted because the definitions of the term "injury" contained in s 4(a) and s 4(b) are not exclusive but inclusive. That is to say, an injury within the ambit of s 4(b)(ii) is also within the ambit of s 4(a). He says that it would be artificial and unlikely to be the legislative intention that an arbitrator should be given power to determine causation in a case of injury that consists of an aggravation, acceleration, exacerbation or deterioration of a disease, but not an injury that does not consist of such an aggravation, acceleration, exacerbation or deterioration. However, for the reasons given above, the arbitrator's order does no more than record acceptance by the parties that the Employer was liable for compensation for permanent impairment, if an approved medical specialist appointed by the Registrar determined that any permanent impairment suffered by Mr Bindah was the result of the incident that occurred on 28 January 2009, when he sustained a direct blow to his right eye by a closing metal door, as described in the Application of 24 August 2011.

Mr Bindah further relies on the scheme of the Compensation Act. Thus, he says, Pt 2 of the Compensation Act deals with liability while Pt 3 deals with benefits. Section 9, within Pt 2, provides that a worker who receives an injury is to receive compensation from his employer in accordance with the Compensation Act. The worker must exhibit an injury within the meaning of s 4. Section 16, also within Pt 2, deals with an injury consisting in the aggravation, acceleration, exacerbation or deterioration of a disease. The Employer is liable to pay compensation where the employment was a substantial contributing factor. Section 9A provides that no compensation is payable in respect of an injury unless the employment concerned was a substantial contributing factor.

Mr Bindah points to the use in Pt 7 of Ch 7 of the Management Act of phrases such as "that result from the injury", "as a result of an injury", "resulting from the injury" and "resulting from an injury". He says that those phrases give greater precision to identifying the permanent impairment that is to be dealt with under Pt 7. The focus of s 326(1)(a) is on the assessment of the degree of permanent impairment, repeating the reference to one of the matters specified in s 319, not whether the workplace incident caused it. By contrast, he says, under s 323, the approved medical specialist must determine whether a proportion of a permanent impairment is "due to" a pre-existing injury. He says that that function requires the approved medical specialist to determine a limited causal question of a medical nature. There is no dispute as to that proposition.

In the present case, Mr Bindah suffered injury that he described in his Injury Claim Form of 28 January 2009. He said that he was hit in the eye and cheek by a steel door. That injury may or may not have had the consequence of aggravating the cataract condition that he had in his right eye at the time of that injury. Mr Bindah says that the scheme of Pt 7 is that the Commission, constituted by an arbitrator, not an approved medical specialist or Appeal Panel, has jurisdiction to determine legal and factual issues as to whether an injury occurred, whether the injury occurred in the course of employment, whether there is a compensable injury, the causation of the compensable injury, liability for the injury, and the compensation payable as a result of that injury. He says that it would be inconsistent with s 293(3)(a) and s 321(4)(a) of the Management Act to hold that any order made by an arbitrator with regard to causation and liability would be in excess of power or could be trumped by an inconsistent finding made by an approved medical specialist. He says that the consequence would be that an arbitrator would have no power to determine finally any application, including by consent orders, since every claim involves a causation issue, including claims for injuries that do not consist of the aggravation, acceleration, exacerbation or deterioration of any disease. Thus, he says that it is most unlikely that it was the legislative intention that jurisdiction to determine causation and liability would be conferred upon a person appointed solely on the basis of medical qualifications, and who is not a member of the Commission, rather than upon an arbitrator constituting the Commission. Under s 369 of the Management Act, an arbitrator must be an Australian lawyer or have skills, qualifications and experience as determined by the Minister.

Those propositions must be rejected, for the reasons given above. That is to say, it is clear that certain matters of causation are within the exclusive jurisdiction of an approved medical specialist or the Appeal Panel. It does not follow that there is no work left for an arbitrator to do. An arbitrator will have power to determine finally any application, except to the extent, if any, that the final determination depends upon the resolution of a medical dispute, as that term is defined. The clear scheme of the Management Act is to vest in an approved medical specialist or an Appeal Panel exclusive jurisdiction to determine those issues that are within the definition of medical dispute, whether they be factual issues, issues of causation or otherwise.

Consequently, Order 3 of the Certificate of Determination on 21 November 2011 simply recorded the arbitrator's determination that Mr Bindah had incurred an injury. That determination involved a conclusion on a matter of causation, being that Mr Bindah's employment was a substantial contributing factor to his injury. The arbitrator did not need to make a determination about the precise nature of the injury, because that matter fell within the province of a medical dispute, which was for the approved medical specialist, and, if necessary, the Appeal Panel, to determine. The arbitrator's determination that Mr Bindah had suffered an injury meant that he had suffered an injury according to the definition of that term in s 4 of the Compensation Act. That definition includes both a personal injury and an aggravation, acceleration, exacerbation or deterioration of a disease. It was then for the approved medical specialist to determine the degree of permanent impairment that resulted from the injury. That determination involved a conclusion on a matter of causation, as indicated by the words in bold.

Ground 3: Constructive Jurisdictional Error

Mr Bindah contends that the Appeal Panel fell into constructive jurisdictional error, in that it failed to address s 323(1) and s 323(2) of the Management Act, despite the request of the parties to do so. He also complains that the Appeal Panel failed to consider whether the pre-condition for the application of the assumption in s 323(2) was met.

Section 323(1) relevantly provides that, 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 or that is due to any pre-existing condition or abnormality. Under s 323(2), if the extent of such a deduction will be difficult or costly to determine, it is to be assumed that the deduction is 10 percent of the impairment, unless that assumption is at odds with the available evidence. One of the reasons contemplated by s 323(2) as to why it may be difficult or costly to determine the extent of the deduction is the absence of medical evidence. Section 323(3) provides that that reference to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.

In the present case, Dr Anderson, in his second Medical Assessment Certificate, and the Appeal Panel, found that no permanent impairment resulted from the injury. It would therefore be otiose for an assessment to be carried out for the purposes of determining a deduction to be made from nil. There was no constructive jurisdictional error on the part of Dr Anderson in his second certificate or on the part of the Appeal Panel.

Ground 4: Non-jurisdictional Error on the Face of the Record

Mr Bindah contends, in the alternative to the above grounds, that the Appeal Panel erred in addressing the question of whether there was a causal connection between the blow and the retinal detachment or whether there was a causal connection between the blow and the injury, consisting of exacerbation of the right cataract. He says that the Appeal Panel asked and answered a question that was unnecessary and inappropriate, regarding a claim that Mr Bindah had never put, namely, whether the blow to his eye on 28 January 2009 directly caused the retinal detachment. He says that the question should not have required a causal connection that was direct, when all that s 9A of the Compensation Act required was that the blow be a substantial contributing factor.

Mr Bindah says that, having rejected the proposition that there was a direct causal connection between the blow and the retinal detachment, the Appeal Panel erred by finding that there was no exacerbation of the right cataract because the blow was not substantial. That two-fold finding was based entirely upon the report from Dr Saks of 2 February 2009. Mr Bindah says that, if it was a function of the Appeal Panel to determine whether there was a causal connection between the blow and the exacerbation of the cataract, the report from Dr Saks provided no evidence as to whether the blow exacerbated the cataract. He says that Dr Saks did not take the relevant history or refer to any earlier report on the cataract and therefore was not in a position to assess whether there was exacerbation of an existing condition. Mr Bindah further says that there was no evidence before the Appeal Panel that the blow was not substantial.

The answer to those contentions is that the Appeal Panel did not require a direct and causal connection between the blow and the retinal detachment. That was not suggested on behalf of Mr Bindah in his submissions to the Appeal Panel. Rather, the Appeal Panel considered Mr Bindah's submissions and medical opinions in support of his contention that the work injury had accelerated the progress of the cataract and thereby led to the surgery on 28 and 29 June 2009. It was common ground that the later retinal detachment and tear, which occurred in April 2010, was the result of the surgery of June 2009.

There was no error on the part of the Appeal Panel in drawing the conclusion that it drew from Dr Saks's report that the trauma suffered by Mr Bindah on 28 January 2009 was not substantial. Having read the report, the Appeal Panel concluded that the trauma suffered on 28 January 2009 was not sufficient to have caused a retinal detachment over a year later. The Appeal Panel had regard to the fact that, following the surgery in June 2009, Mr Bindah enjoyed reasonable vision until the detachment and tear occurred spontaneously in April 2010. The Appeal Panel considered that the passage of time between the surgery and the detachment indicated that the blow to the eye was not implicated as being directly responsible for the detachment.

The Appeal Panel gave cogent reasons for concluding that the report from Dr Saks was critical in leading to the conclusion that the blow to the eye itself was not substantial as contemplated by Dr Chang. Dr Saks found the injury to be minor, consisting of a small superficial corneal abrasion and a mild conjunctival infection. The Appeal Panel considered that, if the injury had been severe enough to cause damage to the lens, the corneal damage and surrounding eye damage would have been more significant. It is not self-evident that that reasoning is erroneous.

Conclusion

It follows that none of the grounds relied upon by Mr Bindah has been established. There was no error on the part of the primary judge. On the other hand, the issues raised are not entirely straightforward. While Mr Bindah has not succeeded in showing that the primary judge erred in the conclusions reached by her, it would be appropriate to grant leave to appeal. Nevertheless, the appeal should be dismissed with costs.

The orders of the Court should be:

(1) Grant leave to appeal;

(2) Direct that the draft notice of appeal filed on 9 October 2013, with the deletion from Order 5 sought in the draft notice of appeal of the words "to constitute an Appeal Panel pursuant to s 328(1) of the WIMWC Act to determine the matter according to law", stand as the notice of appeal and be taken to have been filed on 9 October 2013;

(3) The appeal be dismissed;

(4) The appellant pay the costs of the appeal of the first respondent.

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Decision last updated: 14 August 2014

Medium Neutral Citation:	Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264
Hearing dates:	15/04/2014
Decision date:	14 August 2014
Before:	Meagher JA at [1]; Ward JA at [31]; Emmett JA at [32]
Decision:	1 Grant leave to appeal. 2 Direct that the draft notice of appeal filed on 9 October 2013, with the deletion from Order 5 sought in the draft notice of appeal of the words "to constitute an Appeal Panel pursuant to s 328(1) of the WIMWC Act to determine the matter according to law", stand as the notice of appeal and be taken to have been filed on 9 October 2013. 3 The appeal be dismissed. 4 The appellant pay the costs of the appeal of the first respondent. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	WORKERS COMPENSATION - entitlement to compensation - whether the Appeal Panel of the Workers Compensation Commission wrongly determined liability and causation in the place of an arbitrator - whether the matter was capable of referral to an approved medical specialist under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether the arbitrator characterised the injury as a "frank injury" or as an exacerbation or aggravation of a pre-existing condition - whether the Appeal Panel erred in failing to address s 323 of the Act
Legislation Cited:	Supreme Court Act 1970 (NSW), s 69(4) Workers Compensation Act 1987 (NSW), ss 4, 9, 9A, 16, 65, 65A, 66, 67 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 105, 288, 289, 293, 294, 319, 320, 321, 323, 324, 325, 326, 327, 328, 329, 366 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 Beck v Weinstock [2012] NSWCA 289 Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 Colliar v Bulley [2000] NSWCA 1 Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 Haroun v Rail Corporation New South Wales [2008] NSWCA 192 Khaya v Container Terminals Australia Ltd [2005] NSWCA 433 Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567 Rail Services Australia v Dimovski [2004] NSWCA 267 Rogers v Wentworth (NSW Court of Appeal, 18 April 1988, unreported) Zanardo v Tolevski [2013] NSWCA 449
Category:	Principal judgment
Parties:	Jean Christian Bindah (Applicant) Carter Holt Harvey Woodproducts Australia Pty Ltd (First Respondent) Appeal Panel of the Workers Compensation Commission of New South Wales (Second Respondent) Registrar of the Workers Compensation Commission of New South Wales (Third Respondent)
Representation:	Counsel: M Allars SC (Applicant) JW Dodd (First Respondent) Solicitors: Turner Freeman (Applicant) Spark Helmore (First Respondent) Crown Solicitor's Office (NSW) (Second and Third Respondents, submitting appearances)
File Number(s):	2013/303570
Publication restriction:	Nil
Decision under appeal	Citation: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 Date of Decision: 2013-09-11 00:00:00 Before: Harrison AsJ File Number(s): 2012/147605