Qantas Airways Ltd v Griffiths
[2025] NSWPICMP 506
•14 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Ltd v Griffiths [2025] NSWPICMP 506 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | Darren Griffiths |
| APPEAL PANEL | |
| MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 14 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal based upon the application of section 323; Held – no error established; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 February 2025 Qantas Airways Limited lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 January 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The background to this dispute is that there is no issue that the respondent sustained an injury to his lumbar spine on 13 February 2019 for which the appellant accepted liability.
In making a claim for lump sum compensation the respondent relied upon the assessment of Dr James Bodel in his report dated 18 August 2021 who assessed the respondent as having a 16% whole person impairment as a result of the injury on 13 February 2019. No deduction was made in accordance with s 323 of the 1998 Act.
The respondent sustained a further injury to his lumbar spine on 26 April 2022. The appellant sought an opinion from Dr Frank Machart who provided a report dated 12 January 2023 who considered that both injuries resulted from “the same injury”. Dr Machart did not disagree with Dr Bodel’s assessment of 16% whole person impairment.
On 26 June 2023, after Dr Machart had been provided with records from Miranda Medical Centre, he decreased his whole person assessment from 16% to 11% whole person impairment. He opined that it was appropriate to make a one third deduction pursuant to s 323 of the 1998 Act on the basis of there being substantial and symptomatic pre-existing condition.
Dr Mark Burns, Medical Assessor, issued a Medical Assessment Certificate on
16 January 2025 which assessed the respondent as having a 15% whole person impairment as a result of the lumbar spine injury and made no deduction pursuant to s 323 of the 1998 Act.The appeal therefore relates to the failure of the Medical Assessor, Dr Mark Burns, declining to make a deduction for a pre-existing condition pursuant to s 323 of the 1998 Act.
The appellant also complains that there has been a failure to provide an adequate path of reasoning as to why the opinion of Dr Machart in relation to the deduction was dismissed.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there had been an appropriate assessment of the respondent worker with clearly articulated path of reasoning in the Medical Assessment Certificate issued.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision,
-Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Mr Griffiths reported that on 13 February 2019 he was on shift as a Customer Service Supervisor in the International Terminal. At the time there was not a part time supervisor available to look after the self-check in area. He therefore was asked to take over this area for the entire shift. Throughout his shift he was required to assist passengers in checking in their baggage and putting them on the baggage carousel. He reported that this required him to do a large amount of lifting of heavy bags. About two thirds of the way through the shift he reported a pinching feeling in his low back. He was able to complete the shift but the following morning when he awoke, he had severe pain in his low back. He was not rostered on the next day but stated that the pain in his low back continued. He attempted to return to work on 15 February 2019 and worked until 17 February 2019. The pain in his low back progressively got worse and he reported radiation of pain down into his right leg.
On 18 February 2019 he did not attend work but attended the Miranda Medical Centre and was seen by Dr Rahman. The doctor referred him for a CT scan of his lumbar spine, which was carried out the following day. The CT scan revealed a disc bulge at L4/5, and he was followed up by Dr Rahman who recommended that he should have an MRI scan and consult a neurosurgeon. He notified his manager on 22 February 2019, and it was recommended that he see the Qantas doctor and also attend the Qantas physiotherapist. He was seen by Dr Yuen at the Sydney Airport Medical Centre who believed that he should attend physiotherapy but did not believe that referral to a neurosurgeon was necessary at that time.
Over a period of 8 weeks, he attended physiotherapy twice weekly and his back improved. By 26 April 2019 Dr Yuen believed that he was now fit for pre-injury duties. He returned to his normal duties and reported that he had no ongoing back pain or leg pain.
In June 2019 he was on annual leave. He had booked a cruise overseas on Carnival Spirit going to Vanuatu and New Caledonia. He was going with his family members. On the second last day of the cruise, he reported that he was walking along the ship’s upper deck when he suddenly developed sharp pain in his low back. He stated that he was hunched over and could not straighten up. The pain became significantly worse and on 19 June 2019 he had difficulty disembarking the ship and had to be taken off with the use of a wheelchair. He subsequently contacted Qantas and stated that he had a re-aggravation of his previous work history.
On 25 June 2019 he was seen by Dr Yuen, the Qantas doctor. He was placed off work and commenced attending physiotherapy at the Caringbah Physiotherapy and Sports Injury Centre. He also had a referral to Dr Reddy, a Neurosurgeon. He was unable to see Dr Reddy but was referred to Dr Wilson in the same practice. I noted that Dr Yuen was no longer available as he was on leave, so he commenced seeing Dr Phonesouk, a GP in the same practice. An MRI scan of the lumbar spine carried out on 10 July 2019 revealed spondylosis, most severe at L4/5. There was a disc protrusion and extrusion. Dr Wilson, the Neurosurgeon gave him the options of either having surgery at that time or ongoing conservative management. He decided to go ahead with conservative treatment including physiotherapy and medication. He was having both hydrotherapy and physiotherapy as well as taking Lyrica. He was eventually able to return to a graded return to work plan in about October 2019.
His return to work led to a significant aggravation of his ongoing back pain and right leg symptoms. He eventually developed a partial foot drop on the right side and was seen by Dr Wilson who now recommended surgery. On 21 October 2019 Dr Wilson carried out a right sided L4/5 discectomy. Following the operation, he continued to have a partial right foot drop but upon return to Dr Wilson it was decided that no further surgery was required. He continued to have conservative management and time off work for the remainder of 2019 going into 2020. During the period from 2020 to 2022 he reported that the pain and discomfort in his back had almost completely resolved. He stated though that he was still having significant problems down into his right leg with partial numbness below the knee and a partial footdrop. During this time, he continued having some physiotherapy and seeing Dr Phonesouk.
In around April 2022 he had a further aggravation of his lumbar spine and had considerable low back pain and ongoing problems with his right leg. A further MRI scan of the lumbar spine on 10 May 2022 revealed degenerative disc disease involving L3/4, L4/5 and L5/S1. He again returned to see Dr Wilson who advised against further surgery. He did though continue having physiotherapy for a few months as well as hydrotherapy. He believed that there was no real change in 2022 to 2023 in his right leg.
He stated that he returned to work around Christmas 2023 on a graded return to work plan. This was not particularly successful, and he reported that he had also developed some mental health issues. Eventually his suitable duties were no longer available after April 2024. His GP had requested that he be allowed to work from home but there was no work that Qantas had for him to do at home. He reported that he has not worked since that time (pages 2 and 3)
-There was no evidence of a contour defect associated with the scar and no evidence of atrophy in the scar. The scar itself had no impact on his activities of daily living, and the scar was not attached to the underlying structures, and he was having no treatment for the scar. (page 4).
-Mr Griffiths has a long history of degenerative disease in his lumbar spine with reports of chronic low back pain. I note that every episode was reported as being back pain only and there was no evidence of any pre-existing radiculopathy. Additionally, each episode lasted for only a few days and required minimal if any treatment. I could also find no evidence of pre-existing investigations in the form of scans or x-rays. I also note that he had no previous workers compensation claims for back conditions.
His current injury appears to be a frank injury, which occurred on 13 February 2019 in the form of an L4/5-disc protrusion. He has subsequently required a discectomy on the right side to treat a right L5 radiculopathy. (page 5).
In Dr Machart’s second report dated 26 June 2023, I noted that he made a significant reduction of one third after being told that this gentleman had a long history of pre-existing back pain. Whilst I have already noted the dates and times of his previous back injuries, there was no significant evidence of disc injury or pre-existing sciatica. After thinking about this and reviewing all the documentation I believe that no deduction is appropriate as his current frank injury is in fact a disc protrusion and extrusion, which is different from his degenerative changes. I also disagree with the fact that he has given 1% whole person impairment for scarring as under TEMSKI table, it is a best fit for 0%. I therefore disagree with his 11% whole person impairment but believe that 15% whole person impairment is appropriate. (page 6)
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor made a demonstrable error, or applied incorrect criteria, for the purposes of s 327(3)(c) and (d) of the 1998 Act in failing to make a deduction for pre-existing condition pursuant to s 323 of the 1998 Act.
In addition, the appellant submits that the Medical Assessor made a demonstrable error, or applied incorrect criteria, for the purposes of s 327(3)(c) and (d) of the 1998 Act in failing to make a deduction for pre-existing condition pursuant to s 323 of the 1998 Act.
In reply, the respondent submits that the Medical Assessor clearly rejected the opinion of
Dr Machart, in circumstances where he was entitled to do so. Further in explaining his own assessment, Dr Burns clearly articulated his own path of reasoning.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The 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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The Appeal centres upon the application of s323 of the 1998 Act which provides:
“(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.”The Appeal Panel observes that there is no appeal made in respect of the finding of a 0% whole person impairment in relation to the respondent’s scarring. The appeal is limited to the application of a s 323 deduction from the 1998 Act. The appellant describes the medical dispute is therefore related to whether there was a prior disc prolapse or pre-existing pathology.[1] The appellant then submits that the Medical Assessor made a factual error concluding that there was “no evidence of disc injury or pre-existing sciatica” where they highlight that there were some previous clinical records that they say lead to a contrary finding. They are:
(a) a complaint of right buttock pain after lifting on 2 May 2012;
(b) a positive slump test on 4 July 2012, 13 February 2013 and 27 March 2013;
(c) a notation that there had been “previous disc prolapse” on 25 March 2014, and
(d) there was right-sided back pain on 15 May 2017.
[1] Appellant’s submissions, paragraph 9.
The appellant then submits as the Medical Assessor did not properly confer with the clinical records which formed the basis for Dr Machart’s revised opinion, he has therefore fallen into jurisdictional error.
The appellant also points out the relevance of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed (AMA4 Guides) which provide the principles of assessment at 1.27 and 1.28. They say that these guidelines provide that a deduction is appropriate as there was a pre-existing disc prolapse that has been identified and relied upon by Dr Machart.[2]
[2] Appellant’s submissions, paragraph 17.
In reply, the respondent points to the history that the Medical Assessor clearly relied on under Work History was that “during none of these previous employments did he have any back problems”.
The respondent then commenced employment with the appellant. The respondent complains that to look at the entry for 25 March 2015 and to make a finding that “there was a previous disc prolapse” is simply incorrect.[3] Whist Dr Machart may have relied upon such a condition, it is not born out on the evidence.
[3] Respondent’s submissions, paragraph 6.
The respondent says that the Medical Assessor’s reasoning is clear. He states that whilst there was some past history of lower back pain this was mostly due to mechanical back pain and there was no evidence to show that this was disc related. He also observes that each episode was short and required no significant treatment. At paragraph 5 of his certificate,
Dr Burns records:“Mr Griffiths had a long history of degenerative disease in his lumbar spine with reports of chronic lower back pain. I note that every episode was reported as being back pain only and there was no evidence of any pre-existing radiculopathy. Additionally, each episode lasted for only a few days and required minimal if any treatment. I could also find no evidence of pre-existing investigations in the form of scans or x-rays. I also note that he had no previous workers compensation claims for back conditions. His current injury appears to be a frank injury, which occurred on 13 February 2019 in the form of an L4/5-disc protrusion. He subsequently required a discectomy on the right-hand side to treat that L5 radiculopathy.”
The Appeal Panel has closely looked at the relevant entry on 25 March 2015 which to our minds does not disclose that there was a disc prolapse at that time. The notes indicate that there was “no radiation, no sphincter disturbance, straight-leg raising was normal and spine NAD.” This is not supportive of a finding of a disc prolapse or disc pathology.
The Appeal Panel also observe that the clinical notes before that date do not disclose the respondent as having suffered a disc prolapse. Indeed, the Appeal Panel after considering those notes agrees with the respondent’s submissions that the entries do not disclose anything other than a “mechanical back injury”, a finding as made by the Medical Assessor.
The Appeal Panel has considered the assessment of the Medical Assessor and does not agree that his path of reasoning is not clearly detailed.[4] To the contrary, the Appeal Panel considers that the Medical Assessor has correctly considered all the evidence before him and formed a conclusion open to him that there should be no applicable deduction to be applied. The Medical Assessor has considered the opinion of Dr Machart and clearly explained why his assessment differs. His reasoning to the Appeal Panel is clear and is supported by the Appeal Panel.
[4] Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43.
For these reasons, the Appeal Panel has determined that the MAC issued on
16 January 2025 should be confirmed.
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