Qantas Airways Ltd v Owers - [2025] NSWPICMP 28

DETERMINATION OF APPEAL PANEL
CITATION:	Qantas Airways Ltd v Owers [2025] NSWPICMP 28
APPELLANT:	Qantas Airways Limited
RESPONDENT:	Angela Owers
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	13 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Employer appeal against 8% whole person impairment (WPI), being the non-lead Medical Assessor (MA) concerned with injury to the claimant’s cervical spine, scarring and nervous system; whether the MA was obliged to identify the documents which established injury to the cervical spine; whether the MA should have explained whether asymmetry of motion was associated with a right shoulder injury; Held – appeal misconceived and brought with an eye too keenly attuned to the perception of error; Skates v Hills Industries applied; Bojko v ICM Property Services Pty Ltd referred to.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 August 2024 Qantas Airways Limited, the appellant employer, lodged an Application to Appeal Against the Decision of the non-lead Assessor Dr Robert Kuru, orthopaedic surgeon (the Medical Assessor). A second Medical Appeal Panel has been arranged in relation to the appeal by the appellant employer against the Medical Assessment Certificate (MAC) issued by Professor Christopher Grainge, Respiratory Physician, which will be the subject of a separate Medical Appeal Panel Decision. Both MACs were issued on 12 July 2024.
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 ow8n 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, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 30 May 2024 an amended referral was made to the Medical Assessor to assess impairment to the cervical spine, right upper extremity and the nervous system.
Ms Owers (the respondent) was employed as a flight attendant. On 18 May 2019, whilst on an international flight from Sydney to Los Angeles, Ms Owers fell over a piece of luggage that had been left in the aisle. She twisted as she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICMP 28
Decision Date: 13 January 2025

CaseChat Overview and Summary

In the case of Qantas Airways Ltd v Owers, the appellant, Qantas Airways Ltd, sought to appeal against a determination made by a Medical Assessor regarding the compensation owed to the respondent, Mr Owers. The dispute centred on the assessment of the extent of Mr Owers' whole person impairment (WPI) following injuries to his cervical spine, scarring, and nervous system. The appeal was brought before the Court of Appeal, with the primary contention being the correctness of the 8% WPI assessment.

The central legal issues before the court were twofold: first, whether the Medical Assessor was obliged to identify the specific documents that established the injury to the cervical spine; and second, whether the Medical Assessor should have explained whether the asymmetry of motion was associated with a right shoulder injury. The court had to determine whether the Medical Assessor's failure to identify the documents or explain the association between the asymmetry of motion and the shoulder injury constituted an error that warranted the appeal.

The court held that the appeal was misconceived and was brought with an eye too keenly attuned to the perception of error. The reasoning was grounded in the principle that the court should not lightly interfere with the determinations of Medical Assessors unless there is a clear error. The court referred to Skates v Hills Industries and Bojko v ICM Property Services Pty Ltd to support its view that the appeal did not meet the threshold for interference. The court found that the Medical Assessor's approach was within the bounds of reasonable decision-making and that no error was evident.

The final orders of the court dismissed the appeal, confirming the 8% WPI assessment as determined by the Medical Assessor. The court emphasised that the appeal did not identify any substantial or significant error, and thus the original determination stood.

Orders