Oswell v Sublime Install Pty Ltd

[2024] NSWSC 1586

Supreme Court

New South Wales

Medium Neutral Citation:

Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586

Hearing dates:

14 November 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Jurisdiction:

Common Law

Before:

Basten AJ

Decision:

(1)   Direct that the names of the persons constituting the Medical Appeal Panel be deleted as parties to the proceedings and the second defendant be identified as the “Medical Appeal Panel”.

(2)   Set aside the determination of the Medical Appeal Panel of 13 November 2023.

(3)   Set aside the certificate issued by the Commission on 13 December 2023.

(4)   Direct that the President or his delegate determine whether to:

(a)   grant the claimant’s application for further consideration of the claim for scarring;

(b)   if not, grant the claimant leave to amend his appeal to include the demonstrable error in that regard; and

(c)   refer the medical dispute to a differently constituted medical appeal panel to be determined according to law.

Catchwords:

ADMINISTRATIVE LAW – judicial review – determination of medical appeal panel – claim for workers’ compensation lump sum payment – answering application of request for referral for reconsideration – response to application not within functions of the appeal panel – determination of deduction for pre-existing injury – availability turned on issue of statutory construction – error of law on face of record (reasons of appeal panel)

WORKERS’ COMPENSATION – medical dispute – demonstrable error – failure to address part of dispute (scarring) – request for reconsideration not determined – request referred to appeal panel – scarring not part of appeal – calculation of deduction for pre-existing injury – injury caused by nature and conditions of work – determining date of injury occurring by a gradual process

Legislation Cited:

Civil Procedure Act 2005 (NSW), Pt 6, Div 1

Supreme Court Act 1970 (NSW), ss 69, 75

Workers Compensation Act 1987 (NSW), ss 4,15, 16 66, 68B

Workplace Injury Management and WorkersCompensation Act 1998 (NSW), ss 293, 323, 327, 328. 329

Cases Cited:

Cole v Wenaline Pty Ltd [2010] NSWSC 78

Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304

Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38

Skates v Hills Industries Ltd [2021] NSWCA 142

Texts Cited:

New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment (State Insurance Regulatory Authority, 4th ed, 1 March 2021)

American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed)

Category:

Principal judgment

Parties:

William Oswell (Plaintiff)
Sublime Install Pty Ltd (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant)
Medical Appeal Panel (Third Defendant)

Representation:

Counsel:
K Morgan SC / B McManamey (Plaintiff)
J Hart (First Defendant)

Solicitors:
Turner Freeman (Plaintiff)
Gair Legal (First Defendant)
Crown Solicitor for NSW (Second and Third Defendant)

File Number(s):

2024/51800

 Decision under review 

Court or tribunal:

New South Wales Personal Injury Commission

Jurisdiction:

Workers Compensation Division

Date of Decision:

13 November 2023

Before:

Medical Appeal Panel

File Number(s):

M1-W3216/23

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 9 May 2023, William Oswell (the plaintiff), made an application to the Personal Injury Commission to resolve a dispute as to the degree of his permanent impairment, relevant for assessment for his claim for lump sum compensation. The plaintiff, who had worked for nearly 40 years as a sheet metal worker, suffered an injury to his lumbar spine that caused him to cease working in 2020. It was not in dispute that Sublime Install Pty Ltd (the defendant) was liable to pay compensation.

It was also common ground that the injury to his lumbar spine amounted to 16% whole person impairment. The dispute between the parties related to whether the plaintiff was entitled to an additional 1% for scarring and whether the 16% was to be reduced by a deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) for a pre-existing condition. The dispute was referred to a medical assessor, who issued a medical assessment certificate on 27 June 2023, assessing the plaintiff’s whole person impairment at 14%. The assessment did not include an allowance for scarring, the assessor stating that scarring was not part of the referral. The assessment included a 10% deduction for a pre-existing condition.

The plaintiff sought both a referral back to the assessor (regarding the scarring) and appealed the finding as to the deduction. On 13 September 2023, the dispute was referred to a medical appeal panel (the Appeal Panel). On 13 November 2023, the Appeal Panel dismissed the appeal. The plaintiff sought judicial review of the Appeal Panel’s decision, raising two issues, namely whether the Appeal Panel erred:

1. in determining the reconsideration application; and

2. in making a deduction for a pre-existing condition.

There was a procedural issue as to the proper parties to the proceeding.

Held, setting aside the determination of the Appeal Panel:

As to issue (i) (scarring)

1. The Appeal Panel lacked authority to determine the plaintiff’s application for reconsideration of the scarring component. By exceeding the limits of its statutory function, the Appeal Panel exceeded its jurisdiction and its determination must be set aside: at [53].

2. The decision that the medical dispute did not extend to scarring was not one that could be reasonably have been reached. Although it is sufficient to conclude that the Appeal Panel had no authority to resolve the application for reconsideration, its reasoning was also manifestly wrong on a point of law: at [54].

As to issue (ii) (the deduction)

1. The plaintiff contended that the deterioration of his lumbar spine commenced when he started work as a sheet metal worker. The Appeal Panel erred in finding a pre-existing condition for the purposes of s 323 of the 1998 Act as at the date the plaintiff first exhibited symptoms, or when he commenced employment with the defendant. Those dates were not determinative of the commencement of the gradual process involving deterioration of the lumbar spine. As the Appeal Panel thus failed to identify the time at which the pre-existing condition arose, it was not possible to know whether the finding of a pre-existing condition was supported by evidence and whether it was legally available. The approach amounted to an error on the face of the record: at [89], [91].

As to the question of parties

1. The persons constituting the Medical Appeal Panel should not be named as parties to the appeal, but rather the Appeal Panel, even though not a legal entity, should be the party: at [97].

JUDGMENT

1. BASTEN AJ: The plaintiff, William Oswell, worked for some 40 years as a sheet metal worker. He suffered an injury to his back which resulted in him ceasing work in 2020. There is no dispute that he suffered a workplace injury for which his employer, the first defendant Sublime Install Pty Ltd (the employer), was liable to pay compensation.

Background – issues for review

2. On 9 May 2023, the plaintiff made an application to the Personal Injury Commission (Commission) to resolve a dispute as to the degree of his permanent impairment, relevant for assessment of a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW). There was no dispute that he had suffered an injury to his lumbar spine which qualified as a 16% whole person impairment. The dispute was limited to two peripheral matters. The first was whether he was entitled to an additional 1% for scarring; the second was whether the 16% was to be reduced by a deduction for a proportion of the impairment due to a pre-existing condition, pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

3. An undated referral by a delegate of the President of the Commission referred the medical dispute to a medical assessor (Dr Mastroianni) for an assessment of whole person impairment. On 27 June 2023, the assessor issued a certificate determining the plaintiff’s whole person impairment at 14%. His assessment did not include an allowance for scarring, which he noted but considered not to be part of the referral. The assessment did include a 10% deduction for a pre-existing condition.

4. At that stage, the proceedings in the Commission became largely a matter of disputation as to the correct legal approach. As will be explained shortly, the plaintiff both sought a referral back to the medical assessor to require him to address the dispute as to scarring, and appealed the finding as to the 10% deduction. On 13 September 2023 a delegate of the President determined that the appeal should be referred to a medical appeal panel (the Appeal Panel). On 13 November 2023 the Appeal Panel dismissed the appeal. On 9 February 2024 the plaintiff filed a summons in this Court seeking judicial review of the Appeal Panel’s determination.

5. In this Court, the plaintiff’s primary position was that the Appeal Panel erred in not assessing the merit of the claim for scarring, with the result that no allowance for scarring was included in the certificate issued by the Commission on 13 December 2023. Nor had there been any reconsideration by the medical assessor. Accordingly, on any view the certificate was provided on an erroneous basis and must be set aside. If that course were adopted, the plaintiff submitted that the matter would need to be referred back to the Commission and the second issue raised need not be addressed.

6. The second issue was whether the Appeal Panel had been correct in making a deduction under s 323 of the 1998 Act on account of a pre-existing condition, where the injury was one which resulted from the nature and conditions of employment and was either contracted by a gradual process (within the meaning of s 15(1) of the Workers Compensation Act) or consisted in the aggravation, acceleration, exacerbation or deterioration of a disease (within s 16(1) of the Workers Compensation Act).

7. For reasons explained below, the plaintiff is entitled to succeed on both issues. I do not accept his counsel’s invitation to limit consideration to the first issue. If the matter goes back to an appeal panel, precisely the same issue will arise with respect to the availability of a deduction. That is not an issue for the medical experts, but rather for the member of the Commission who sits on the appeal panel and deals with legal issues. I presume that there is some internal procedure by which consistent approaches are taken by differently constituted appeal panels in relation to legal issues. Accordingly, one may expect that, if the approach taken in this case was in error, it will be repeated on any further reconsideration of the case, resulting in a further application for judicial review by this Court. That would not be an efficient and cost-effective means of resolving the dispute, in accordance with the guiding principles set out in Pt 6, Div 1 of the Civil Procedure Act 2005 (NSW). Because, for reasons explained below, the legal issue was resolved contrary to clear statements of the law by the Court of Appeal, the error should be corrected.

Procedural background

Determining scope of medical dispute

8. Before addressing the manner in which the dispute as to scarring was dealt with in the Commission, it is convenient to set out the legal principles involving the identification of a medical dispute. Both parties (and indeed the Appeal Panel) referred to statements of the Court of Appeal in Skates v Hills Industries Ltd. ^[1] There were two issues in that case. The dispositive issue for the majority was the failure of the medical assessor to assess an injury to the worker’s left wrist, an injury which had been identified in correspondence between the parties, but had not been identified in the Commission’s letter of referral to the medical assessor. The dissenting judge (McCallum JA) accepted a broader proposition for which the applicant had contended, namely that the relevant body part had been identified as “left upper extremity”, not being limited to the wrist, the joint on the ring finger and scarring. On that view, the medical assessor had been entitled to consider the whole person impairment based on the presentation of the worker as having an “essentially useless left limb”.

   1. [2021] NSWCA 142.

9. The reasoning of the majority, succinctly expressed by Leeming JA, involved a three-stage process, namely identifying (i) a medical dispute requiring resolution; (ii) the scope of the dispute, by reference to the documentation including correspondence between the worker and the employer’s insurer and the attached medical expert reports, and (iii) the referral document. The application of that approach was identified as follows:

“46   The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.

47 Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.

48   The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”

10. A similar problem to that which had arisen in Skates arose in the present case. The letter of referral for assessment included, on a standard form, the following information:

“1   MEDICAL DISPUTE REFERRED FOR ASSESSMENT

…

Date of Injury:         20 January 2020

Body part/s referred:      Lumbar spine

Method of assessment:   Whole person impairment

2    BRIEF

The brief provided to the Medical Assessor includes:

1   the Application and attached documents.

2   the Reply and attached documents[.]”

11. Self-evidently, the reference to “lumbar spine” was imprecise and did not purport to identify any particular injury. It was both appropriate and necessary for the medical assessor to have regard to the “brief”, including the application, namely the “application to resolve dispute” and the insurer’s “reply to application to resolve dispute”. In the plaintiff’s application, in the box for “Injury Details”, the following appeared:

“The applicant sustained injury to his lumbar spine due to the nature and conditions of his employment with a deemed date of injury of 11 January 2023 as a sheet metal worker with Sublime Install Pty Ltd as his job role involved continuous heavy lifting, movement of objects and material which progressively caused a deterioration in his condition.

Please refer to the applicant’s statement for further information.”

12. The plaintiff’s statement, dated 20 April 2023, described the nature of the surgery which the plaintiff underwent in May 2020 and February 2022. His statement included the following passage:

“17   As a result of my surgeries, there is an eleven (11cm) scar with pigmentation loss across my low back. This has made me anxious about my appearance, I feel a loss in my self-confidence. I often cover myself as a I do not feel comfortable with other people looking at my scars with a singlet or a shirt. I no longer attend public pools or the beach to swim as a leisure [sic] as I feel my scarring may make others uncomfortable.”

13. Further, that there was a dispute about scarring may be inferred from a two-page “PI Assessment Medical Report” provided by Dr Mohammed Assem (the plaintiff’s doctor) dated 9 November 2022, which included an amount of 1% for scarring, and a report in reply obtained by the employer, from Dr John Sheehy dated 3 March 2023, which stated:

“His scar is well-healed and I have not made any allowance for TEMSKI and there were no signs of radiculopathy.”

14. Dr Sheehy’s reference to TEMSKI should be explained. In determining the level of permanent impairment, scarring is treated as a separate item or body system, pursuant to the relevant Guidelines. ^[2] The Guidelines adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5^th ed) (“AMA Guides”), which require assessment of permanent impairment by reference to “body systems”. Chapter 14 of the Guidelines adopts from the AMA Guides a “table for the evaluation of minor skin impairment”, known as TEMSKI.

    2. New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment (State Insurance Regulatory Authority, 4th ed, 1 March 2021) (“Guidelines”).

First medical assessment

15. The medical assessor, in his reasons for issuing a medical assessment certificate on 27 June 2023, noted that Dr Assem “assessed scarring however I was not asked to assess scarring”. He did not do so. It may be inferred from that statement that he understood that the referral with respect to “lumbar spine” was limited to the injury to the lumbar spine and did not include scarring following an operation on the lumbar spine because there was separate provision for scarring in the Guidelines. Nevertheless, the plaintiff submitted that, in accordance with Skates, reliance on the referral to limit the scope of the medical dispute was incorrect. Accepting that submission, the question was then what step should be taken to remedy this error.

Request for reconsideration

16. The step in fact taken by the plaintiff was to request a reconsideration pursuant to s 329 of the 1998 Act. That application was made by email on 10 July 2023, requesting that the Commission refer the matter back to the medical assessor to assess the scarring. It appears that on or about 18 July 2023, an officer of the Commission gave a direction referring the matter to the medical assessor for reconsideration. At 10.24am that morning, the solicitor for the employer emailed the Commission requesting that the referral be cancelled as the respondent had given notice of its opposition and said that it had 21 days to provide submissions supporting that opposition.

17. In an apparent response to that email (though undated in the evidence) an officer of the Commission replied:

“The Commission erred in not referring the body part of scarring – TEMSKI to the assessor.

The applicant’s medicine from Dr Assem gives a percentage for scarring.

The appointment stands.”

18. That, however, proved not to be the case. On 20 July 2023 the plaintiff filed a notice seeking leave to appeal from the decision of the medical assessor. On 25 July 2023 the solicitor for the plaintiff emailed the Commission:

“The Appeal is limited to a demonstrable error on the part of the Medical Assessor for making a deduction pursuant to s 323 of the Act.

In accordance with your previous determination, the failure to assess scarring is not a demonstrable error and as such the medical assessment should proceed to allow the assessment for scarring to take place.”

19. It seems that the employer’s solicitor was of the same view, although he opposed the referral for reconsideration. On 26 July 2023, an officer of the Commission emailed the parties stating:

“An appeal has now been lodged – the MA appointment has been cancelled.”

20. Two observations should be made in relation to these exchanges. First, the power to direct reconsideration as an alternative to an appeal was only engaged if the matter could otherwise have proceeded to an appeal. ^[3] The failure to assess scarring, if it were part of the medical dispute, was self-evidently a demonstrable error within s 327(3)(d) of the 1998 Act (set out below). There was a benefit to the plaintiff in having the matter referred for further consideration because that course preserved his right of appeal in the event that the assessment was unfavourable.

    3. 1998 Act, s 327(6).

21. Secondly, the Commission cancelled the appointment, but did not expressly revoke the decision to refer the issue for reconsideration. There has been no challenge in this Court to the decision of the officer of the Commission cancelling the appointment with the medical assessor, which appears to have been understood as revoking the direction for reconsideration, though it is not clear that it had that effect. Why the lodgement of an appeal led to that outcome is also unclear.

22. On 28 July, the employer/respondent filed its submissions in response to the request for reconsideration with a covering email stating:

“We note that this issue is separate and distinct from the appeal now lodged by the Appellant. The Respondent will provide the submissions in response to the Appeal at a later date and within timeframes.”

Appeal to Appeal Panel

23. The statutory provision governing the lodging of an appeal is s 327 of the 1998 Act, which relevantly provides:

327   Appeal against medical assessment

(1)   A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2)   A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3)   The grounds for appeal under this section are any of the following grounds—

(a)   deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b)   availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c)   the assessment was made on the basis of incorrect criteria,

(d)   the medical assessment certificate contains a demonstrable error.

(4)   An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

(5)   If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.

(6)   The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

Note— Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section). ^[4]

4. The words in parenthesis cannot refer to the power under s 329(1)(a) which picks up the power in s 327; they appear to refer to s 329(1A) which confers an identical power without the qualification.

24. Given the need to comply with the time limit in s 327(5), it was understandable that the plaintiff lodged his appeal before there had been a reconsideration. Given the employer’s opposition to the reconsideration, it would also have been reasonable for the plaintiff to have included the failure to assess scarring in his appeal. It was not clear that he did that.

25. The statutory scheme for appeals is not well expressed. Section 327(3) of the 1998 Act identifies the “grounds of appeal” which, in most cases, will be limited to the application of incorrect criteria (in par (c)) or demonstrable error (in par (d)). Section 328(2) provides that “[t]he appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made”. The phrase “grounds of appeal” is apt to pick up that phrase in s 327(3). It is not limited to the ground on which a delegate of the President determined that at least one ground “has been made out”, for the purposes of s 327(4), but it is limited to errors identified in the notice of appeal, as held in Queanbeyan Racing Club Limited v Burton. ^[5]

    5. [2021] NSWCA 304 at [26].

26. Identification of the grounds of appeal in fact relied on is not assisted by the fact that the Form 10 used for the purpose of lodging an appeal makes no provision for a statement of the grounds, other than the identification of the generic grounds stated in s 327(3). The practice is to annex written submissions, which should identify the particular alleged errors with clarity.

27. The plaintiff’s written submissions to the Appeal Panel referred to Dr Assem’s assessment of scarring, which assessed the impairment at 17%, or, without the allowance for scarring, at 16%. The submissions then proceeded to deal with the deduction for a pre-existing condition. The result sought in the submissions was a certificate of whole person impairment of 16%, by implication not including scarring. There was no express reliance in the submissions on the failure to assess scarring. That matter, it may be inferred, was intended to be dealt with by way of reconsideration.

28. Curiously, the plaintiff’s request for reconsideration was included in the papers provided to the Appeal Panel. The Panel appears to have assumed it was required to deal with the request and addressed the issue in some detail. ^[6] It set out the submissions of the parties ^[7] and analysed the reasoning in Skates. ^[8] Other cases in the Commission were referred to and distinguished, ^[9] the Appeal Panel concluding:

“85   In this case however, the letter making the appellant’s claim did not particularise the body parts sought. In the ARD, under the heading ‘Permanent Impairment – Pain and Suffering’, and specifically ‘Systems Claimed’, the appellant’s Application listed only ‘Lumbar spine’.

86   The appellant did not seek to amend or correct the referral within the three days allowed by the Commission.

87   The mere statement by the appellant that ‘the claim was always intended to include the claim for scarring despite the ARD and referral omitting to make reference to the words ‘scarring’ is not sufficient to override the underlying principle that, as President Phillips said in Connolly, ‘the effect of the MAC is, subject to appeal or the application of a slip rule exception, the final resolution of the medical dispute’.

…

89   It is regrettable for the appellant that he is thus unable to pursue his claim for scarring, but we are bound by the authorities to which we have referred.”

6. Appeal Panel reasons, at pars 61-89.

7. Ibid, at pars 61,62.

8. Ibid, at pars 63-71. At par 68, the Panel misquoted Leeming JA in Skates by omitting part of the quoted passage and including a passage from the reasons of the President of the Commission from a different matter (Connolly) to which reference will be made below.

9. Ibid, at pars 72-82.

29. It is apparent from this reasoning that the Appeal Panel considered that its function was to determine the application for reconsideration. As will be explained below, that was not its function. Further, its legal analysis was incorrect.

30. The Appeal Panel also addressed what was essentially a legal question, namely whether the medical assessor had been correct in making a 10% deduction for a pre-existing condition. The correctness of its reasoning on that matter is the subject of review ground 2 in this Court.

Submissions in this Court

31. The substantive relief sought by the plaintiff in his summons was an order setting aside the decision of the Appeal Panel dated 13 November 2023, as well as a declaration that the decision was void and of no effect. In a further amended summons, for which leave was granted in the course of the hearing, the plaintiff also sought a declaration that the Commission’s certificate of 13 December 2023 was void and of no effect.

32. Contrary to the terms of the summons, s 69 of the Supreme Court Act 1970 (NSW) does not deal with declarations, but with orders in place of the former writs, and in particular a writ of certiorari. Declaratory relief is no doubt available pursuant to s 75 of the Supreme Court Act, but, where the operative decisions are to be set aside, declarations serve no additional function.

33. The further amended summons also sought a declaration that “the s 293 referral dated 30 May 2023” was void because it did not refer to the assessment of scarring. This proposed order was confused and unnecessary. First, s 293 provides for a referral for further medical assessment or reconsideration: the failure to make such a referral was part of the plaintiff’s complaint.

34. Secondly, the referral in fact made on 30 May 2023 was a referral for medical assessment which identified the body part referred to as “lumbar spine”. As is apparent from the reasoning in Skates set out above, the referral notice was not determinative of the scope of the medical dispute referred for medical assessment. The referral notice was not in its terms void and of no effect: it was simply not a complete statement of the medical dispute. That proposed order may be disregarded.

35. Finally, the plaintiff sought either an order that the appeal and reconsideration application be remitted to the President of the Commission, or that there be a declaration that the original medical assessment certificate of 27 June 2023 is void and of no effect because it did not include scarring. On the assumption that the plaintiff’s submissions as to scarring are accepted, the appropriate course is for the matter to be dealt with in the Commission, and not by declaratory relief in this Court.

36. Accordingly, there are three issues to be addressed, namely (i) whether the medical dispute included a claim for scarring; (ii) whether scarring should have been dealt with either by way of appeal or by reconsideration of the medical assessment, and (iii) whether the Appeal Panel erred in its conclusions as to the availability of a deduction for a pre-existing condition in respect of the lumbar spine. In considering these issues, it will be necessary to identify whether any error constituted an error of law on the face of the record or a jurisdictional error. If not, the plaintiff is not entitled to relief in any event.

37. It will be convenient to deal first, as did the plaintiff at the hearing, with (i) and (ii) which relate to scarring, and then with (iii).

Scarring - scope of dispute

38. There was no doubt that the question of the reduction under s 323 of the 1998 Act for a pre-existing injury was part of the medical dispute between the parties and was part, if not the whole, of the appeal to the Appeal Panel. The question was whether the medical dispute extended to an allowance for scarring, which was treated as a separate item pursuant to the Guidelines.

39. The employer accepted that Dr Assem, in a report included in the application to resolve a dispute, included an allowance for scarring. Referring to the plaintiff’s statement that “it was always intended that scarring would form part of the claim”, the employer submitted that the intention to include scarring as part of the claim “does not make it so”. ^[10] The reasoning in support of that conclusion was that the referral was not in error in omitting reference to scarring because “[t]he letter making the claim under s 66 of the 1987 Act, which is the document that effectively gives rise to the ‘medical dispute’, did not specifically make a claim for ‘scarring’”. ^[11]

    10. Employer’s written submissions, 15 October 2024, pars 36, 37.

    11. Employer’s written submissions, par 35.

40. This reasoning is wrong in two respects. First, it is inconsistent with Skates, which makes it clear that the scope of the medical dispute may not be capable of identification by reference to only one document, but may require consideration of several documents. Secondly, the letter to which the employer referred, being the plaintiff’s solicitor’s letter of 11 January 2023 to the employer’s insurer, contained three relevant paragraphs, in the following terms:

“We refer to the above matter and confirm we act on behalf of Mr Oswell in relation to his workers compensation claim against Sublime Install Pty Ltd, for injuries suffered as a result of the nature and conditions of employment (deemed date of injury 20 January 2020).

We are instructed to make a claim [f]or lump sum compensation for [sic] pursuant to Section 66 of the 1987 Act for 17% WPI.

In support [of] our client’s claim, we enclose by way of service the report of Dr Mohammed Assem dated 9 November 2022 (x2).”

41. Three points may be made in relation to this letter. First, it referred merely to “injuries” in the first paragraph, without defining the injuries. Secondly, it sought 17% whole person impairment, and enclosed a report of Dr Assem. Dr Assem assessed total whole person impairment of 17%, expressly including “1% whole person impairment for scarring”. Accordingly, if the letter was the critical document, the claim for scarring was expressly identified. Thirdly, if it were necessary to look to other documents relied on by the plaintiff, the application to resolve a dispute, although referring to “lumbar spine” as the body part for which a claim was made, identified the WPI as “17%”, a figure consistent with that assessed by Dr Assem, whose report was attached, on the basis of 1% for scarring.

42. The existence of this element of the dispute was revealed in an affidavit of the plaintiff’s solicitor, Basema Elmasri, of 24 May 2024, annexing “the relevant documents that formed part of the dispute between the parties that were subject of the appeal to the Medical Appeal Panel”, and including the report of Dr Sheehy of 3 March 2023 in which Dr Sheehy expressly identified, in his assessment of whole person impairment, that “[h]is scar is well-healed and I have not made any allowance for TEMSKI”.

43. If it were a matter for this Court to determine, I would be persuaded that the question of scarring formed part of the medical dispute between the parties, based on the material set out above. There is a question, however, not addressed by either party in submissions, as to whether such a finding is within the Court’s jurisdiction in exercising judicial review. Despite the lack of submissions, it is necessary to determine that question, as it is jurisdictional.

44. On one view, the existence of a “medical dispute” is a jurisdictional fact, because it is the basis of the engagement of powers of the Commission to resolve a dispute. However, the better reading of the statute may be that the jurisdictional fact is the satisfaction of the Commission as to the existence of a medical dispute. Further, it is necessary to enquire whether the content of the dispute is also a jurisdictional fact.

45. This question was noted, but not answered, in Skates where I observed:

“31   … However, once it is accepted that the scope of the referral was properly capable of restriction by reference to body parts/systems, the question as to how the Appeal Panel read the referral may well have been a matter for its professional judgment and not one involving reviewable error.”

46. If the existence and scope of a medical dispute is not to be determined by this Court, two further considerations follow. The first is whether the Commission addressed the question. In fact it did, because, as noted above, it agreed to the request for reconsideration and made a direction referring the matter back to the medical assessor. The fact that it revoked that direction because an appeal had been lodged does not lead to an inference that it had changed its view in that regard, but merely that it considered the matter would be addressed by the Appeal Panel.

47. The second question is whether it matters that the Appeal Panel took a different view. The answer to that question is twofold: (i) if answering the question is not within the statutory functions of a medical appeal panel the answer should be disregarded, and (ii) if answering the question is within power, the answer will be reviewable for error of law on the face of the record or jurisdictional error.

48. It is convenient to turn immediately to the approach adopted by the Appeal Panel. The employer submitted that the Appeal Panel was not exercising the power of reconsideration, but rather determining the request for a referral for reconsideration. That submission is consistent with the language used by the Appeal Panel, as set out above, and should be accepted. The employer also observed that s 329 required the request for reconsideration to be determined in accordance with the terms of that section, which read:

329   Referral of matter for further medical assessment or reconsideration

(1)   A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—

(a) the President as an alternative to an appeal against the assessment as provided by section 327, or

(b)   a court or the Commission.

(1A)   A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.

(2)   A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.

49. It is clear that the Appeal Panel was neither the President nor a court. However, the employer observed that the non-medical, non-presidential member of the Appeal Panel could exercise a power delegated by the President to determine the reconsideration application. ^[12] Nevertheless, the employer also accepted that the reasons of the Appeal Panel indicated that it was the Panel which purported to determine the reconsideration application and in doing so acted without jurisdiction. While conceding that to be an error, the employer asserted it was not a material error, because there was “no prospect that could have realistically resulted in a different decision”; in short, the Panel’s analysis was “correct as a matter of law”. ^[13]

    12. Referring to s 328(1)(b) of the 1998 Act and the relevant document of delegation: employer’s written submissions, pars 26-28.

    13. Employer’s written submissions, pars 32 and 33.

50. The concession that the Appeal Panel had no power to resolve the reconsideration application should be accepted; the submission that the error was not material should not. The reasoning of the Panel was inconsistent with the determination of the Court of Appeal in Skates. It was also inconsistent with the reasoning of the President of the Commission in Secretary, New South Wales Department of Education v Connolly,^[14] a case which was referred to by the Appeal Panel, but the passage relied on was butchered and part was attributed to Leeming JA in Skates, as noted above. More importantly, it did not support the Panel’s conclusion.

    14. [2023] NSWPICPD 38 (President Phillips DCJ).

49. Connolly involved an appeal to the President from a decision of a member of the Commission referring a matter for further medical assessment under s 329 of the 1998 Act. The President noted that the member had focused on the application of Skates, finding that Skates “did not conclude that the scope of a medical referral is always properly capable of restriction by reference to the specified body parts/systems at the time of the referral, and without reference to the applicant’s claim and the respondent’s dispute”. ^[15]

    15. Connolly at [11].

50. Connolly, however, was a different case from Skates. It was common ground that the additional claims referred for reconsideration (scarring and occipital neuralgia), were not part of the initial claim. That, the member held, was because the claimant did not have evidence at that point to support the additional claims. The President did not accept that finding by the member, because, first, the matters upon which the medical expert’s assessment had been based were precisely defined and because there had been reference to, for example, scarring, but a WPI of 0% had been assessed. In other words, this was an attempt to increase the scope of the initial claim on the basis of fresh information, but not raising a new point. There is no reason to doubt the conclusion or the reasoning of the President in Connolly: it does not address the present circumstances.

51. The Appeal Panel lacked authority to determine the application for reconsideration. As it exceeded the limits of its statutory function in so doing its decision was infected with jurisdictional error and must be set aside.

52. Were it necessary to do so, I would conclude that the decision that the medical dispute did not extend to scarring was not a conclusion that could reasonably have been reached. Accordingly, it demonstrated both error of law and jurisdictional error. However, it is sufficient to conclude that the Appeal Panel had no authority to resolve the application for reconsideration. The one entity within the Commission having power to deal with the reconsideration request, namely the member who gave the relevant direction (before the appointment was cancelled) formed the necessary opinion as to the scope of the medical dispute. The Appeal Panel’s reasoning to the contrary was not only without authority, but was manifestly wrong as a matter of law.

Consequence of failure to consider scarring

55. The practical consequence of the circumstances set out above is that the claim for scarring was part of the medical dispute between the parties and has not yet been determined. The medical assessor noted that Dr Assem had assessed scarring but stated, “however I was not asked to assess scarring”. It may be inferred that the assessor came to that conclusion because he understood the referral defined the scope of the dispute. That was a mistaken view and a “demonstrable error” for the purpose of an appeal. It could have been dealt with by the Appeal Panel, had it been part of the appeal; it could have been dealt with by way of a reconsideration. Neither occurred.

56. However, it is not a matter for this Court to determine the appropriate course. In principle, that should be determined by the Commission to which application was made. On the other hand, it may be that the Commission has already determined that it should be referred back to the assessor for reconsideration: it was only the appointment which was vacated. Unless there are now practical difficulties in pursuing that course, there can be no doubt that it is an appropriate course and one which would preserve the appeal rights of the parties.

57. The plaintiff submitted that if the ground with respect to scarring were to be upheld, it would follow that the medical assessment certificate issued by the Appeal Panel should be set aside, because it did not reflect a resolution of the medical dispute. That point may be accepted. However, if the certificate resolved part of the medical dispute, there appears to be no reason why there cannot be a reconsideration of a distinct aspect of the dispute after an assessor has determined another part. To the extent that any reconsideration resulted in a change in the calculation of whole person impairment it may be that s 329(2) would resolve any inconsistency.

58. The plaintiff’s submission appeared to envisage that the appeal would remain on foot unresolved, and would need to be referred to a new appeal panel. Given that the second matter, namely the deduction for a pre-existing injury, had been dealt with by the first Appeal Panel and involved no element of professional medical judgment, it would be important for the new appeal panel to know whether the first Panel’s assessment had been correct or not. Accordingly, it is certainly appropriate, and probably necessary, to resolve the second matter raised by the plaintiff’s application for judicial review.

Deduction for pre-existing injury

59. The plaintiff’s case in respect of this issue commenced with the proposition, which was not in dispute, that the injury was either a disease contracted by a gradual process, within the terms of s 15 of the Workers Compensation Act, or consisted in the aggravation, acceleration, exacerbation or deterioration of a disease, within the terms of s 16 of that Act. The issue was how, if at all, s 323 of the 1998 Act was engaged in such a case. Section 323 reads as follows:

323   Deduction for previous injury or pre-existing condition or abnormality

(1)   In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

(2)   If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.

Note— So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).

(3)   The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.

Note— Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.

60. The relevant element in s 323(1) was the term “pre-existing condition”: there was no “previous injury”, nor “abnormality” relied on. The medical assessor expressly noted, in taking a history relating to the injury:

“There is no history of any previous or subsequent injury to the back.”

61. The plaintiff’s submission was that, whether under s 15 or s 16 of the Workers Compensation Act, the injury commenced when the relevant process commenced. Accordingly, any pre-existing condition must have existed at the time of the commencement of the process. In his history, noted by the medical assessor, the plaintiff had stated that “in December 2019 whilst working installing air conditioning ducts he developed back pain”. He further recorded:

“He states that for a couple of weeks prior to the injury in December 2019 he was getting back pain on and off but needed no treatment.”

62. This language is consistent with the assessor treating the injury as occurring with the onset of symptoms. The finding as to a pre-existing condition, namely “[s]evere multi-level degenerative lumbar spondylosis …”, derived from an MRI of the lumbar spine undertaken on 8 January 2020. The assessor explained in his reasons for his assessment:

“MRI at the time of the injury revealed longstanding pre-existing multilevel canal stenosis, foraminal stenosis and lumbar spondylosis and facet osteoarthritis. In my opinion the pre-existing degenerative disease is a component of the current impairment. Guided by the history of no previous injuries or problems with the back and the radiological findings, I have made a one tenth deduction, applying the provision of s 323.” (Emphasis added.)

63. The plaintiff submitted that an injury occurring as a result of a process attributable to the nature and conditions of employment required that a pre-existing condition must be present when the relevant employment commenced, namely in 1981, and not some 38 years later with the onset of disabling symptoms. The case did not involve a frank injury which occurred in 2019 and aggravated the existing degenerative disease. The medical assessor did not identify any degenerative condition which existed in 1981, when the plaintiff was 20 years of age.

64. The Appeal Panel noted that the plaintiff’s submissions before it identified the question in these terms: ^[16]

“… in the case of a disease injury the proper enquiry is whether the condition pre-exists the date when the appellant first performed work to the nature of which the disease was due (s 15) or was the first type of work that was a substantial contributing factor to the injury (s 16). In this case [that test] requires identifying a condition that existed prior to the appellant commencing work as a sheet metal worker in 1981. The MRI in 2020 does not establish a degenerative condition that had been present for almost 40 years.”

16. Appeal Panel reasons, 13 November 2023, par 31(q).

65. The employer’s submissions, as summarised by the Appeal Panel, contained the following elements: ^[17]

“(a) the respondent does not dispute the allegation that the appellant suffered an injury under s 4(b)(ii) of the 1987 Act. Both Independent Medical Examiners and the Medical Assessor accept that the appellant’s injury was an aggravation of underlying degenerative change;

…

(c)   the respondent does however dispute the appellant’s submissions in respect to the entirety of the appellant’s duties throughout his employment history being relevant, and that the Medical Assessor erred by not considering whether the appellant’s pre-existing condition was evidenced before 1981;

…

(e)   the respondent submits that it is the duties with the insured, with whom the appellant was employed by from 5 March 2018, that are pleaded as causative of the worker’s injury;

…

(i) the respondent also submits that the acceptance of a s 4(b)(ii) injury automatically triggers a deduction, being that by their very nature, such injuries are the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, which by necessity, must be pre-existing.”

17. Appeal Panel reasons, par 32.

66. The determinative reasoning of the Appeal Panel commenced with the following observations:

“33 To begin with, as the respondent correctly points out, it is not disputed that the appellant’s injury fell within the definition contained in s 4(b)(ii) of the 1987 Act.

34   Section (4)(b)(ii) of the 1987 Act provides:

‘the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…’.

35   That being said, it is of necessity an injury by way of ‘aggravation’ of a pre-existing injury or disease. In addition, to satisfy the definition of injury in this section, it must be established that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.

36   That of itself means employment with the employer named in the proceedings.”

67. A number of observations may be made in relation to this passage in the reasoning. First, it is very much a lawyer’s analysis; although there are factual assumptions (which are not explored), they do not suggest the application of medical expertise.

68. Secondly, although the employer may not have disputed that the injury was one which fell within s 4(b)(ii) of the Workers Compensation Act, that was not the approach adopted by the plaintiff in the passage set out at [64] above. Leaving to one side the temporal element, the plaintiff had contended that there was no evidence of a pre-existing condition and that the evidence was equally consistent with the engagement of either s 15 or s 16 of the Workers Compensation Act.

69. The full definition of “injury” in s 4 is as follows:

4    Definition of "injury"

In this Act--

"injury" --

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

(b)   includes a "disease injury", which means--

(i)   a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii)   the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease ….

70. The definition in s 4(b)(i) is consistent with the engagement of s 15 as a disease “of such a nature as to be contracted by a gradual process”. If that section is engaged (as the plaintiff expressly left open) there was no assumption of a pre-existing condition. Indeed, if it were not possible to identify a “pre-existing condition or abnormality”, it is not clear how s 16 would be engaged.

71. Thirdly, the admission of liability which led to the medical assessment involved a concession that the plaintiff’s injury was one where the employment was the main contributing factor. The reference to that matter by the Appeal Panel appears to have led to the conclusion (at par 36) that it can only be employment with the employer named in the proceedings which is to be considered. However, that finding does not reflect accurately the language of the statute. It is necessary to refer to the relevant terms of ss 15 and 16.

15   Diseases of gradual process – employer liable, date of injury etc

(1)   If an injury is a disease which is of such a nature as to be contracted by a gradual process--

(a)    the injury shall, for the purposes of this Act, be deemed to have happened--

(i)    at the time of the worker's death or incapacity, or

(ii)   if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and

(b)   compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.

(2)   Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.

…

(3)   Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.

(4)   In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.

(4A)   In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.

…

16   Aggravation etc of diseases – employer liable, date of injury etc

(1)   If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--

(a)   the injury shall, for the purposes of this Act, be deemed to have happened--

(i)   at the time of the worker's death or incapacity, or

(ii)   if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and

(b)   compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.

[Subss (2) and (3) mirrored subss 15(2) and (4).]

72. Both sections envisage that the claim for compensation is to be made against the employer “who last employed the worker”. The nature of that employment must have been a contributing factor, but it is not consistent with the section to treat that as the only relevant employment.

73. The error at par 36 of the Panel’s reasons appears to have fed into the temporal element, namely that the pre-existing condition may be identified as the condition of the plaintiff’s back at the time he commenced work with the employer.

74. A second theme in the Appeal Panel’s reasons dealt with what the plaintiff “pleaded”, what “evidence” he provided and what he “said” in a statement. This approach did not engage with the medical evidence. The entry on the application to resolve dispute form, against the heading “Injury Description/Cause of Injury and Death”, was set out as the plaintiff’s “pleading”. ^[18] The use of the legal term “pleading” is inappropriate and apt to lead to asking a wrong question.

    18. Appeal Panel reasons, pars 49 and 50.

75. Referring to the evidence, the Panel stated:

“48   In this case, there is no reference to any prior employers in the claim, nor is there evidence of the type of employment which may have contributed to the aggravation.”

76. However, five paragraphs later, the Panel quoted the following passage from the plaintiff’s statement dated 20 April 2023:

“I immigrated to Australia in 1981 and continued to work as a sheet metal worker.

I was employed by Sublime Install Pty Ltd as a full-time sheet metal worker for nine (9) years prior to my injury.

I have sought no other employment and have pursued my career in the sheet metal industry all my life.

In or around December 2019, I was installing heavy air conditioning ducts that weighed between 30kg-80kg whilst in the course of employment, this was when I first felt pain my low back …”

77. The Appeal Panel continued:

“54   Although noting he had worked as a sheet metal worker since he arrived in Australia, Mr Oswell specifically stated that he first felt symptoms in December 2019, consistent with the history provided to the Medical Assessor.”

78. This reasoning is consistent with the view that the injury occurred when the appellant first felt symptoms. However, that is to equate “injury” with incapacity or “impairment”. That approach was erroneous. If the Panel concluded that the prior employment was not of the same kind as that with the employer, it would have been obliged to put that inference to the plaintiff, whose statement had suggested continuity of conditions of work.

79. The Appeal Panel noted that the plaintiff had “correctly” identified the operation of ss 15 and 16, but then noted that s 15 dealt principally with a disease “contracted by gradual process” (although it is not clear what else it dealt with) and then said that s 16 “is relevant to the issues in dispute in this case”. That conclusion explains the reliance on there being a pre-existing condition which is aggravated, but ignores the fact that the plaintiff had not limited his case to that provision. If the medical evidence was inconsistent with the injury being one which arose by a gradual process, there should have been a finding to that effect on the medical evidence. The Appeal Panel made no such finding.

80. Although the application to resolve a dispute referred to the injury as having a deemed date of 11 January 2023 (which was the date of the letter making the claim to the insurer), the medical assessor treated the deemed date as 20 January 2020, being the date of the plaintiff’s incapacity, in accordance with subs (1)(a)(ii) of both s 15 and s 16. The deemed date of injury has specific purposes under the legislative scheme, but does not affect the nature of the injury as defined in s 4(b) of the Workers Compensation Act, and as described in ss 15 and 16. Both “incapacity” and “impairment” usually arise only when an underlying condition becomes symptomatic. The medical experts all correctly assessed the degree of whole person impairment by reference to the surgery for lumbar radiculopathy. None discussed the basis upon which the degenerative condition identified in 2020 was a “pre-existing condition”.

78. One underlying problem is that the degenerative condition may well have contributed to the impairment, but not have pre-existed the initial effects of the employment.

Reduction for pre-existing condition - findings

82. As noted above, the plaintiff relied in the Commission on the possibility of his injury engaging either of s 15 or s 16. In this Court, his written submissions were ambivalent on this point, stating that it was “common ground that the injury was one to which s 16 of the 1987 Act applied”. ^[19] On the other hand, the submissions recognised that he had earlier submitted that “the injury was the subject of s 15 or s 16”, ^[20] and suggested that “where the only evidence of a degenerative condition is that found after 40 years of work that has aggravated … the condition, it is highly likely that any condition that pre-dated 1981 would be de minimus, if it existed at all, and would not have contributed to the current level of impairment in the sense explained”. ^[21] Perhaps the clause “if it existed at all” was merely a rhetorical flourish, but it suggested the possibility of the engagement of s 15. However, in the course of the hearing, senior counsel for the plaintiff focused on the operation of s 16 and s 323. The Court should do the same.

    19. Plaintiff’s written submissions, 14 June 2024, par 22.

    20. Ibid at par 28.

    21. Ibid at par 36.

83. So far as the statutory scheme is concerned, it is clear that s 16 of the Workers Compensation Act and s 323 of the 1998 Act are intended to operate together. That may be seen from the terms of s 68B of the Workers Compensation Act, which appears in the same division as s 66, under which the claim was made. Relevantly, s 68B provides:

68B   No proceedings to enter up award on agreement for compensation

…

(3) When determining the compensation payable by an employer in a case in which section 16 applies (an injury that consists in the aggravation, acceleration, exacerbation or deterioration of a disease), section 323 of the 1998 Act applies to that compensation subject to the following—

(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,

(b)   for the purposes of paragraph (a), previous relevant employment is employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration by a previous employer who is liable under section 16 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),

(c)   in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act.

84. The limitations on the operation of s 323 are only engaged in relation to previous relevant employment, and do not suggest any constraint on the operation of s 323 in so far as it is concerned with any pre-existing condition or abnormality.

85. The plaintiff’s submissions in this Court focused on the proposition that the Appeal Panel failed to engage with his complaint that any pre-existing degenerative condition must have existed before the plaintiff commenced working as a sheet metal worker in 1981. According to the evidence, the plaintiff was 20 years of age in 1981: had the medical assessor or the Appeal Panel addressed the question identified by the plaintiff, they must have considered whether the plaintiff would then have had the degenerative condition revealed 40 years later in an MRI report. Neither the medical assessor nor the Appeal Panel undertook that task.

86. It appears that the Appeal Panel, in terms outlined above, considered that the only question to be addressed was the plaintiff’s medical condition when he commenced employment with the employer, which, on his evidence, was some nine years before the operations which gave rise to the impairment. That approach was incorrect as a matter of law, unless it could be found that there was no “previous relevant employment”.

87. Section 16 has two primary purposes. One is to identify a deemed date of injury; the other is to identify the employer which should be held responsible for the injury which, as with an injury covered by s 15, arises by way of a gradual process. That other employers might be liable for a proportion of the injury is reflected in the terms of s 16(2) and s 68B(3). However, the assumption of apportionment is inconsistent with the proposition that the last employer will not be liable for the whole of the compensation payable on a claim by the injured worker.

88. Two further questions arise. First, as the employer contended, there had to be a single injury and one which was materially contributed to by conditions of employment ever since, on the plaintiff’s case, 1981. The plaintiff’s claim did not assert that material contribution, or provide evidence of the nature of his work prior to his employment with the defendant. Although counsel for the employer denied that this was a pleading point, ^[22] it nevertheless turned on the description of the nature of his work other than with the employer, which was not addressed in the evidence.

    22. Tcpt, 14/11/24, p 36(45).

89. In my view, that submission should not be accepted. Once it was held that the liability arose under s 16, and the plaintiff’s statement indicated that he had been undertaking sheet metal work all his working life, the natural inference was that whatever pre-existing condition or abnormality there may have been in his back, it had been aggravated by that work over the full period during which he had been undertaking it, at least since his arrival in Australia. There may have been other things said in the course of the examination undertaken by the medical assessor, but none is recorded. Neither the medical assessor nor the Appeal Panel stated that it was necessary to identify a date at which the pre-existing condition arose. (Had it been an abnormality, it might have been assumed to be present from birth, but that language was not relied upon.)

90. The plaintiff submitted that the error made by the Appeal Panel in this case was analogous to that identified in Cole v Wenaline Pty Ltd. ^[23] Cole was undoubtedly a different case: it involved a prior frank injury and not an injury by way of gradual deterioration. However, the reasoning in the case may be understood as apposite in the present circumstances. The error identified in that case was the making of an assumption that where there had been a prior injury the current state of permanent impairment would be greater than otherwise. However, as Schmidt J noted, “an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case. An assumption of the kind here made … has no role to play in that assessment”. ^[24]

    23. [2010] NSWSC 78 (Schmidt J).

    24. Cole at [31].

91. In the present case, the assumption was that the degenerative condition revealed by the MRI in 2020 was a “pre-existing condition”. That finding could not be made without determining when the degenerative condition commenced and whether it pre-dated the earliest effects arising from the nature of the plaintiff’s employment.

92. In describing the matter in that way, it is not intended to suggest that any precise allocation of dates is required: but there must be some general understanding of causal effects and consequences or it is not possible to describe a condition as “pre-existing” another condition.

93. The second point is implicit in the first. The difficulty in applying a s 323 analysis in the case of a disease of accretion by a gradual process is that over time comorbidities may arise, each of which contributes to the other. It is not clear that s 323 provides for a deduction in such circumstances. There are a number of possibilities, none of which was explored in this case. One possibility is that a susceptibility to a degenerative condition may be an abnormality. The susceptibility may pre-exist the heavy work in employment.

94. As already noted, s 16, though not s 15, assumes an existing “disease” which may include a susceptibility to a degenerative condition. On that approach, it is only the element of aggravation, acceleration, exacerbation or deterioration to which the employment was a substantial contributing factor which is compensable. However, on that reading of the statute, it would be rare for a s 16 disease not to be subject to deduction under s 323, whereas a disease of such a nature as to be contracted by a gradual process, albeit one subject to a substantial contribution by conditions of employment, would not, or would not necessarily, be subject to such a deduction. The differential application of s 15 and s 16 entailed by that reasoning may or may not have been intended.

95. On a different approach, s 323 would not give rise to a deduction where the pre-existing condition was simply a normal condition and not some form of abnormality, whatever the cause.

96. Whether it is necessary to address these questions in order to resolve this case is by no means clear. They were not addressed in argument and cannot be resolved in this judgment. What is clear is that the Appeal Panel adopted an approach to the application of s 323 which failed to identify the time at which the pre-existing condition arose, so as to know whether that finding was supported by evidence and whether it was otherwise legally available. The approach adopted by the Appeal Panel, although consistent with that of the medical assessor, was erroneous in point of law. So much appears from the reasons of the Appeal Panel which constitute part of the record for the purposes of s 69(4) of the Supreme Court Act. It was an error of law on the face of the record.

Parties

97. In Cheers v Mid Coast Council [25] I explained why the persons constituting the Medical Appeal Panel should not be named as parties to the appeal, but rather the body, even though not a legal entity in its own right, should be the party. As in that case, it is appropriate to correct the record.

    25. [2024] NSWSC 1553 at [85], [86].

Conclusions

98. The plaintiff is entitled to succeed on both limbs of its challenge to the determination of the Appeal Panel. Accordingly, the Court orders:

1. Direct that the names of the persons constituting the Medical Appeal Panel be deleted as parties to the proceedings and the second defendant be identified as the “Medical Appeal Panel”.

2. Set aside the determination of the Medical Appeal Panel of 13 November 2023.

3. Set aside the certificate issued by the Commission on 13 December 2023.

4. Direct that the President or his delegate determine whether to:

1. grant the claimant’s application for further consideration of the claim for scarring;

2. if not, grant the claimant leave to amend his appeal to include the demonstrable error in that regard; and

3. refer the medical dispute to a differently constituted medical appeal panel to be determined according to law.

**********

Endnotes

Decision last updated: 11 December 2024