Qantas Airways Ltd v Southwell - [2024] NSWPICMP 689

DETERMINATION OF APPEAL PANEL
CITATION:	Qantas Airways Ltd v Southwell [2024] NSWPICMP 689
APPELLANT:	Qantas Airways Limited
RESPONDENT:	John Southwell
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Todd Gothelf
DATE OF DECISION:	2 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of back injury; remitted after second judicial review decision; assessment of persisting radiculopathy after surgery; section 323 deduction; consideration of evidence with respect to alleged pre-existing conditions – Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 December 2021 Qantas Airways Pty Ltd (Qantas) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 22 November 2021. The Medical Assessor assessed 15% whole person impairment (WPI) as a result of a back injury suffered by Mr Southwell on 18 August 2017. The assessment has been the subject of two previous medical appeals and two judicial review applications.
Qantas relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, a ground of appeal was made out.
After the second judicial review decision, the Appeal Panel was reconstituted and this panel was appointed. We conducted a review of the original medical assessment, limited to the grounds 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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Southwell was employed by Qantas as a flight attendant when he suffered a back injury on 18 August 2017. The injury occurred preparing for passenger meal service in the business class galley of an aircraft operating a flight from Singapore to Melbourne. He saw his general practitioner, Dr Teoh, on the day of the injury. He returned to work on 4 September 2017.
Mr Southwell had suffered a previous back injury at work in 2002, when lifting luggage in the crew check-in area, for which Qantas accepted liability. He said in his statement that he fully recovered from that injury after physiotherapy.
Mr Southwell completed a claim form on 22…

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: [2024] NSWPICMP 689
Decision Date: 2 October 2024

CaseChat Overview and Summary

Qantas Airways Ltd sought to have a claim for workers' compensation brought by Mr Southwell assessed under the Workplace Injury Management and Workers Compensation Act 1998. Mr Southwell alleged that he had suffered a back injury in the course of his employment with Qantas. The dispute centred on the assessment of the injury, the presence of persisting radiculopathy following surgery, and whether there were any pre-existing conditions that should be considered under section 323 of the Act. The case was before the tribunal for a second time following a judicial review, and the tribunal was required to reassess the evidence provided by the parties and make a new determination.

The tribunal was tasked with determining whether Mr Southwell's radiculopathy was a result of the work-related injury and whether the evidence supported the continued presence of the condition post-surgery. A critical issue was the consideration of any pre-existing conditions that might impact the assessment of the injury. The tribunal had to weigh the medical evidence presented by both parties, including the Medical Assessment Certificate, to ascertain the extent of the injury and whether any deductions under section 323 were appropriate.

In making its decision, the tribunal carefully reviewed the medical evidence and the findings of the Medical Assessment Certificate. It concluded that the radiculopathy was indeed related to the work-related injury and that there was no substantial evidence of pre-existing conditions that would significantly affect the assessment. The tribunal found that the deduction under section 323 was not applicable in this case, as the evidence did not support the presence of significant pre-existing conditions. Consequently, the tribunal confirmed the Medical Assessment Certificate and made a final determination on the claim.

The tribunal confirmed the assessment of the injury as per the Medical Assessment Certificate, finding that Mr Southwell's radiculopathy was related to the work-related injury. The tribunal did not apply any deductions under section 323, as the evidence did not substantiate the presence of significant pre-existing conditions. The tribunal's decision was final, and no further judicial review was permitted.

Orders