Coles Supermarkets Australia Pty Ltd v Gandhi

Supreme Court of NSW|2023-10-24|Before: Davies J

Coles Supermarkets Australia Pty Ltd (Plaintiff) Rahulkumar Gandhi (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) Member Catherine McDonald, Dr Mark Burns and Dr John Garvey as an Appeal Panel constituted pursuant to section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant) Representation: Counsel: S J McMahon (Plaintiff) J Turnbull SC & T Hickey (First Defendant) Submitting appearances (Second & Third Defendants)

Solicitors: Turks Legal (Plaintiff) Lionheart Lawyers (First Defendant) Crown Solicitors Office (Second & Third Defendants) File Number(s): 2023/210081 Publication restriction: Nil Decision under appeal Court or tribunal: Personal Injury Commission of NSW Jurisdiction: Administrative Law Citation: Nil Date of Decision: 5 April 2023 Before: Member Catherine McDonald, Dr Mark Burns and Dr John Garvey as an Appeal Panel constituted pursuant to section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) File Number(s): M1-W3124/22

Background

The first defendant, now aged 46, commenced employment with the plaintiff on 20 October 2016. He worked at stores in Victoria, and then transferred to Rouse Hill in New South Wales on 12 March 2018. Between March and August 2018 he worked as a storeman in the Dairy Department. This work included unloading stock using a pallet jack, and unloading stock from crates using cages.
The first defendant suffered injured to the lumbar spine. He had pre-existing pathology, being a pars interarticularis defect at the L5/S1 level. He alleged the work was causative of the aggravation of that pathology. He continued part time suitable duties with restrictions until September 2020. He suffered from lower back pain and radiculopathy to the right buttock and occasionally the left lower limb.
The first defendant was treated by Dr Rao, neurosurgeon. On 8 September 2020 he underwent an L5/S1 anterior lumbar interbody fusion, and then on 10 September 2020 he had an L5/S1 lumber decompression and fusion by posterior approach. He has undergone treatment with a pain management specialist, Dr Deshpande, and he used anti-inflammatory and opioid medications.
In approximately July 2021 the first defendant developed gastrointestinal symptoms which he attributed to the use of medications post-surgery.
The first defendant made a claim for weekly benefits of compensation and medical expenses pursuant to the Workers Compensation Act 1987 (NSW) ("the 1987 Act"). There is no dispute that the injury is an "injury" for the purposes of the 1987 Act. By reason of the operation of the "disease provisions" of the 1987 Act, the injury has a deemed date of 7 August 2018.
The first defendant claimed treatment and medical expenses for a gastroscopy and colonoscopy. He underwent these procedures on 30 August 2021.
The plaintiff disputed liability by a Notice dated 28 July 2021 on the basis that surgical intervention was not reasonably necessary medical treatment.
The first defendant made a claim for lump sum compensation pursuant to s 66 of the 1987 Act for 29% Whole Person Impairment ("WPI") (being 25% WPI for the lumbar spine and 4% WPI for the upper and lower digestive tracts).
The first defendant filed an Application to Resolve a Dispute in the Personal Injury Commission ("PIC") on 23 May 2022 seeking an award in his favour for lump sum compensation pursuant to s 66 of the 1987 Act. As the assessments of the degree of WPI differed there was a "medical dispute" (as defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act")). On 20 September 2022, the PIC referred the first defendant to a Medical Assessor ("MA") for assessment of WPI.

Medical Assessment Certificates

Dr Anderson, occupational physician, was appointed as the MA. He assessed the first defendant on 13 October 2022 and issued a Medical Assessment Certificate (MAC) on 11 November 2022. The MAC certified the WPI arising from injury to the lumbar spine, the digestive system and the scarring as 26% WPI. The MA deducted one third of the impairment of the lumbar spine in respect of the pre-existing pathology, relying on s 323 of the 1998 Act. The MA's ultimate finding was of 17% WPI which included 1% WPI for scarring and 0% in relation to the digestive system.
The first defendant appealed against the MAC on 9 December 2022. The Delegate was satisfied the MAC contained a demonstrable error pursuant to s 327(3)(d) of the 1998 Act. The matter was then referred to a Medical Appeal Panel ("MAP") constituted pursuant to s 328 of the 1998 Act. That MAP is the third defendant in the present proceedings.
The third defendant conducted a preliminary review of the MAC, and caused the first defendant to be re-examined in relation to the digestive system. The third defendant revoked the MAC and issued a new MAC on 4 April 2023. The further MAC assessed 26% WPI in relation to the lumbar spine but deducted one tenth of the assessable impairment, applying s 323(2) of the 1998 Act, to arrive at 23% WPI. The third defendant also assessed 1% WPI for scarring, 1% WPI for the upper digestive system, 0% for the lower digestive system and 0% for the anus. The WPI assessed was 25%.

Grounds

The plaintiff now seeks declarations pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the third defendant's decision is void and of no effect and that it should be set aside. It also seeks an order that the matter be remitted to the second defendant (the President of the PIC) for referral to a differently constituted Appeal Panel. The grounds upon which the plaintiff relies are these: 1. The Third Defendant erred at law by failing to properly apply section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in relation to the assessment of the degree of permanent impairment said to arise from injury to the lumbar spine by failing to consider the contribution that the pre-existing condition had to the need for treatment and for which there is a baseline percentage of permanent impairment. 2. The Third Defendant erred at law by failing to properly address the Plaintiff's submissions and thereby failed to exercise jurisdiction in respect of the correct application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) when assessing the degree of permanent impairment said to arise from injury to the lumbar spine. 3. The Third Defendant fell into jurisdictional error by misdirecting itself and/or proceeding on the basis that in the absence of evidence of symptoms related to the pre-existing condition of the lumbar spine, it was not possible to determine the proportion of the impairment attributable to the pre-existing condition of the lumbar spine. 4. The Third Defendant erred at law by failing to consider relevant evidence before it when determining the deductible proportion of the assessment of permanent impairment of the lumbar spine injury due to the pre-existing condition when applying section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). 5. The Third Defendant erred at law by failing to provide sufficient reasons when finding that the 'proportion of the impairment due to the pre-existing condition cannot be determined' in relation to the assessment of the degree of permanent impairment said to arise from injury to the lumbar spine and thereby failed to exercise jurisdiction. 6. The Third Defendant erred at law by failing to correctly apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed) in relation to the assessment of the degree of permanent impairment said to arise from injury to the upper digestive tract. 7. The Third Defendant erred at law by failing to give adequate reasons as to why mild abdominal tenderness amounted to a 'sign' of digestive tract disease as opposed to a 'symptom' for the purposes of the assessment of the degree of permanent impairment said to arise from injury to the upper digestive tract. 8. The Third Defendant erred at law by failing to address submissions made by the Plaintiff in relation to the finding on examination of mild abdominal tenderness when assessing the degree of permanent impairment said to arise from injury to the upper digestive tract. 9 and 10 not pressed. 11. Error of law in failing to provide adequate reasons as to why it accepted that the findings on endoscopy were sufficient to establish "signs" thereby satisfying paragraph 16.9 of the Guidelines.
It may be observed that grounds 1 to 5 concern the lumbar spine issue while grounds 6 to 8 and 11 concern the digestive tract issue.

Legislation

Section 323 of the 1998 Act provides: 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. (4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.

The Medical Assessor's reasons

The MA's reasons for allowing a deduction of one third were these: Specialist Occupation Physician, Dr Utham Dias in his reports of 22/11/21 combined with 22/07/22 assess the lumbar spine impairment at 27%. This includes activities of daily living at 3% whereas I assessed 2%, otherwise our Assessments are the same. Dr Dias deducts one-tenth for the pre-existing condition of the pars interarticularis defect. With great respect, I believe this is at odds with the available clinical information and this should be considerably greater. … Specialist Orthopaedic Surgeon, Dr Richard Powell in his report of 26/04/22 similarly assesses the lumbar spine at Category IV. He includes 3% for radiculopathy but advises against the further 2% for the second surgical procedure. With great respect, this was conducted two days after the first occasion with a different anatomical approach and necessitated a completely separate (and extensive) surgical approach with associated anaesthetic and recovery features. Under these circumstances I am strongly persuaded that the issue of "second surgery" does need to be fully considered. Dr Powell deducts half of the impairment for the pars interarticularis defect, ultimately having a whole person impairment of 13%. Whilst I would agree that there is a need for a substantial deduction, I am persuaded that a deduction of half is excessive. … There has been a pars interarticularis defect at the L5/S1 articulation. This would increase the susceptibility to further work-related pathology, particularly with a physically arduous occupation which Mr Gandhi was pursuing. If Mr Gandhi's condition had been managed conservatively, I would suggest that a deduction of one-tenth to address this issue would have been appropriate. In this particular case, however his condition was managed with a two-stage surgical procedure with an anterior and then a posterior approach two days later. The fact that the surgery was carried out places Mr Gandhi into a much higher bracket for impairment assessment. The major issue necessitating the extensive surgical procedure has been the existence of the pars interarticularis defect. Therefore, it is considered very appropriate that there should be a greater deduction than one-tenth but as already mentioned, a deduction of half is considered excessive. A deduction of one-third is therefore assessed as fair, reasonable and very appropriate for Mr Gandhi's circumstances. This therefore reduces the whole person impairment of the lumbar spine from 26% down to 17%.

The Medical Appeal Panel's reasons

The MAP was required under s 328 of the 1998 Act to review the MA's assessment. If it revoked the Certificate because error was found, the MAP was to issue a new Certificate. In the present case, the MAP considered that the MA had fallen into error. The MAP said: 31. The task for the Medical Assessor was to consider the appropriate deduction attributable to the pre-existing condition. The Medical Assessor suggested that the deduction would be one-tenth if the condition had been treated conservatively. He said that the deduction should be greater because surgery was undertaken, the pars interarticularis defect being the main reason why surgery was undertaken. That opinion misstates the inquiry he was required to undertake. … 36. The Medical Assessor's attempt to assess the deduction by reference to the treatment undertaken was misguided. If the previous condition contributes to the extent of the incapacity, that contribution is the same, regardless of the treatment.
There is no appeal from that determination.
The MAP noted that it had all of the evidence that was before the MA, and had taken that evidence into account in making its determination. The MAP noted the submissions of the parties and said it had considered them. It summarised some of those submissions. It noted what was said by Basten JA in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 concerning the reasons to be given for a determination.
In relation to the lumbar spine, the MAP noted that the MA had assessed the first defendant in DRE lumbar category IV, and that his total assessment for the first defendant's lumbar spine was 26% WPI, about which there was no dispute. The issue was the deduction pursuant to s 323, and how that deduction was to be assessed.
The MAP noted the MA's consideration of other examiners' approaches to the issue including that of Dr Dias, who had deducted one-tenth for the pre-existing condition, and Dr Powell, who had deducted 50%. The MAP rejected Dr Rao's opinion that the pars interarticularis defect was caused by the first defendant's work.
The MAP then set out extracts from Schmidt J in Cole v Wenaline Pty Limited [2010] NSWSC 78 at [29]-[30] and [54], from Basten JA in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43] and from Campbell J in Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45], all concerned with s 323 of the 1998 Act.
The MAP then said this: 36. The Medical Assessor's attempt to assess the deduction by reference to the treatment undertaken was misguided. If the previous condition contributes to the extent of the incapacity, that contribution is the same, regardless of the treatment. 37. The Medical Assessor did explain his reasons for making the deduction and the argument that he did not is without foundation. 38. The injury was the aggravation of the pre-existing condition. A proportion of the impairment is inevitably due to the pre-existing condition. The aggravation led to the need for surgery. The fact that the underlying condition necessitated more complex surgery does not mean that the deduction should be greater than if there had been no surgery at all. The figure chosen by the Medical Assessor is arbitrary, as was the deduction of one-half made by Dr Powell. 39. There is no evidence that the underlying condition was causing symptoms before the injury. In particular, there is no reference to symptoms in Mr Gandhi's general practitioner's notes. The proportion of the impairment due to the pre-existing condition cannot be determined and it was appropriate to make the assumption in s 323(2). The appropriate deduction is one-tenth and the appropriate assessment of impairment as a result of Mr Gandhi's lumbar spine injury is 23%.

Ground 1. Failing to consider the contribution of the pre-existing condition had to the need for treatment

The plaintiff submitted that the spinal fusion was treating the pre-existing condition and the work-related aggravation of that pre-existing condition. The plaintiff submitted that in a situation where the degree of permanent impairment is determined by reference to the treatment undertaken, it is necessary to consider the extent to which the pre-existing pathology contributed to the need for the treatment undertaken. That was submitted to be a fundamental part of the analysis when determining the deductible proportion in applying s 323 of the 1998 Act. The plaintiff submitted that it followed that the greater the contribution the pre-existing condition had to the need for treatment, the greater the deductible proportion should be. The plaintiff submitted that the MAP had before it evidence by which it could have made a satisfactory decision as to the appropriate deduction when applying s 323. The plaintiff submitted that the MAP did not actually consider the contribution of the pre-existing condition when seeking to apply s 323. In that way, the MAP failed properly to apply the criteria under s 323(1) and then s 323(2). In that way, the plaintiff submitted, the MAP erred at law.
The first defendant submitted that the MAP set out and followed the authorities that dealt with the proper approach to s 323. It then considered the opinions of the experts, rejecting the conclusion of the MA, and reached its conclusion that s 323(2) applied.

Ground 2: Jurisdictional error by failing properly to address the plaintiff's submissions in respect of the correct application of s 323

The plaintiff submitted that the MAP's reasoning process was found at pars 36-39 of its reasons. The plaintiff submitted that each paragraph simply stated a conclusion with no, or limited, reasoning for why the MAP came to each particular conclusion. The plaintiff submitted that this was a failure to exercise jurisdiction.
The first defendant submitted that the MAP noted that it had considered all of the submissions, and set out portions of them in its reasons. Attention was drawn to pars 20 and 21 of its reasons in that regard.

Ground 3: Error of law by proceeding on the basis that an absence of symptoms of the pre-existing condition [meant] it was not possible to determine the pre-existing proportion

The plaintiff submitted that the MAP erred at law by misdirecting itself that symptoms of the pre-existing condition were required to quantify the impairment and make a deduction under s 323 otherwise than the 10% minimum. The plaintiff submitted that the quantification of the deductible proportion did not require "symptoms". Rather, the assessor was required to determine the "impairment" caused by the pre-existing condition. That determination ought to have been made by considering the evidence of the actual consequences of the impairment arising from the pre-existing condition.
The plaintiff submitted that the MAP did not consider relevant evidence when coming to the conclusion that the deductible proportion could not be determined. That evidence included the radiological investigations which identified the pathology and the severity of the same. The plaintiff submitted that the reasons of the MAP at pars 36, 38 and 39 relied upon an incorrect interpretation of the facts to the applicable law and asked the wrong question.
The first defendant submitted that this ground proceeded on the wrong assumption that the MAP treated the absence of symptoms as determinative of the question of the proportion of impairment that arose as a result of the pre-existing condition. The first defendant submitted that in fact the MAP treated the asymptomatic nature of the condition as part of the overall evidence in assessing what deduction should be made.

Ground 4: Jurisdictional error by failing to consider relevant evidence when determining the deductible proportion

The plaintiff submitted that the MAP failed to exercise jurisdiction by failing properly to consider evidence before it.
The first defendant submitted that it is apparent from the reasons of the MAP that they considered all of the relevant evidence, including the radiological evidence and the previous assessments by the experts.

Ground 5: Error at law by failing to provide sufficient reasons when finding the proportion of the impairment due to the pre-existing condition could not be determined jurisdiction, thereby failing to exercise jurisdiction.

The plaintiff submitted that the MAP found no evidence that the pre-existing condition was symptomatic pre-injury but did not provide any reasons as to why the absence of evidence of symptoms was required to quantify the deduction of any impairment referable to the same. The plaintiff submitted that it was not identified in the reasons whether it was too expensive or difficult, which is required to engage the default statutory deduction.
The plaintiff submitted that the MAP did not grapple with the controversy in the opinions of Dr Dias, Dr Powell or the MA. The MA reasoned that the pathology led to the need for the surgical intervention, and Dr Rao said that the surgery was to treat the pre-existing pathology.
The plaintiff submitted that the failure of the MAP to give reasons which grappled with the differences was an error of the type identified in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365 and Vegan.
The first defendant submitted that the ultimate determination of the MAP depended upon its special expertise, which will rarely give rise to an error of law, relying on what was said in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [45]. The first defendant submitted that the reasons fulfilled the statutory requirement and ought not to be viewed with an eye finely tuned to error. The first defendant submitted that the MAP's reasons made clear that it was aware of its obligations in relation to providing reasons.

Consideration

It is convenient to consider the five grounds together, because the plaintiff's complaint about the approach of the MAP is essentially one concerned with the way it has gone about the task of applying s 323. The focus is on pars 38 and 39 of the MAP's reasons: see [23] above.
In Cole Schmidt J said of s 323 at [38]: What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.
The first two of those stages were not in dispute. It was accepted that the first defendant's level of impairment was 26% and that a proportion of that was due to the underlying condition. The plaintiff's complaint is, essentially, that the MAP applied subs (2) without adequately explaining why it did so and, to the extent that it offered a reason, the reason was erroneous. The reason, the plaintiff submitted, was contained in the first two sentences of par 39, There is no evidence that the underlying condition was causing symptoms before the injury. In particular, there is no reference to symptoms in Mr Gandhi's general practitioner's notes.
It is, of course, necessary to read the MAP's reasons as a whole, and not to construe them "minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 322; approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272.
Nevertheless, the High Court said in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43: [54] The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. … [55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
Similarly, in Vegan Basten JA said at [121]: Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, 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. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.
I also note that in Lancaster Basten AJ said at [45]: Although Wingfoot was concerned with a statutory obligation to give reasons, it is appropriate to adopt a similar approach in relation to the implied obligation under the Workplace Injury Act, based on a similar purpose from which it is derived. That purpose is to ensure that, to the extent possible, any error of law in the reasoning of the Appeal Panel is revealed and may be the subject of an application for judicial review. However, as a practical matter, the Appeal Panel is likely to determine the question before it as a matter of expert medical opinion, the basis for which is peculiarly a matter of its special expertise and which will rarely give rise to any error of law, except on the basis that it is devoid of support in the material before the panel.
In the present case the MAP had regard to the opinions of Dr Dias, Dr Powell and the MA. The MAP rejected the deductions by Dr Powell and the MA, saying that they were "arbitrary". It did not comment on Dr Dias's deduction, apart from noting it when reviewing the MA's assessment. The MAP rejected the notion, put forward by the MA, that the fact that the underlying condition necessitated more complex surgery meant that the deduction should be greater.
The MAP then came to its conclusion in par 39. It appeared to place some importance on the absence of symptoms before the injury. The plaintiff asserted that the MAP moved from the absence of symptoms to its conclusion that the deduction could not be determined, with the result that subs (2) applied. The first defendant submitted that the absence of symptoms was but one consideration in the MAP's conclusion, and not the sole reason.
Those opposing submissions highlight the problem with the MAP's reasons. The MAP's conclusion is: The proportion of the impairment due to the pre-existing condition cannot be determined and it was appropriate to make the assumption in s 323(2). No reason is put forward for that conclusion. It is not unreasonable to think that it might be because of the two preceding sentences (set out at [39] above), but it equally might have been because the MAP in the preceding paragraph thought that the deductions suggested by Dr Powell and the MA were arbitrary. Surprisingly, no mention is made of Dr Dias's deduction although, in principle, it is just as arbitrary as the other deductions, despite being in line with s 323(2). Again, the reason might have been because the earlier assessments were so diverse that it was difficult to determine (it seems unlikely that cost was the problem).
It might reasonably be inferred that the MAP found that it was "difficult … to determine", because it applied that subsection, but the MAP has failed to set out the reason for that conclusion. What was said in Wingfoot and Vegan is entirely apposite. What the MAP has failed to do is to provide reasons sufficient to see if there is an error of law. Similarly, where there are different medical opinions, and the MAP has reached a different conclusion, there needs to be some explanation for one conclusion over another. Whilst its conclusion is reached as a matter of its special expertise, its rejection of the other approaches as "arbitrary" highlights the need for additional reasons of its own.
It is not so much, as the plaintiff has contended, that the MAP did not consider relevant evidence or the plaintiff's submissions (the reasons identify the evidence and make reference to, and set out some of, the submissions), or that it did not properly apply s 323 (in principle it did by following Cole), or that it misdirected itself by focusing on the absence of symptoms (as noted earlier, no-one can be sure). Rather, the explanation for its conclusion (at [23] above) is, in fact, an ipse dixit, as Heydon JA (as his Honour then was) said in Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 795; [2001] NSWCA 305 at [87].
In that way, the inadequacy of the reasons is an error of law, and the determination of the MAP as it concerns the lumbar spine issue should be quashed.

Dr Garvey's assessment

In relation to the digestive system, the MAP determined as a result of a preliminary review that the failure by the MA to consider the results identified by Dr Chen from an endoscopy and a pathology report by Associate Professor Yang which showed gastric antral type mucosa with active chronic inflammation (those reports showing that the first defendant had signs of upper digestive tract disease being gastritis), was an error. The MAP also held that the MA's failure to conduct an anal examination in relation to the haemorrhoids was an error. It was for that reason that the MAP directed a further examination which was conducted by Dr Garvey. The MAP adopted Dr Garvey's findings that the first defendant suffered 1% WPI as a result of the consequential condition in his digestive tract.
Dr Garvey noted the results of an endoscopy conducted in August 2021 which found: Small hiatus hernia, chronic inflammation, evidence of reflux and gastritis and Helicobacter pylori which was treated and eradicated. Haemorrhoids were detected on colonoscopy.
Dr Garvey noted a report from Dr Neil Berry, a general surgeon, who reported in November 2021 that the first defendant had developed reflux and constipation about two months after treatment with analgesics for his work injury.
Dr Garvey identified the first defendant's injuries as being gastro-oesophageal reflux and constipation. He assessed WPI as being 2% and said he had taken account of the following matters in making that assessment: There is a history of gastro-oesophageal reflux and constipation which according to the treating gastroenterologist are consistent with side effects of opioid medications taken for his back injury. The physical examination findings are within normal limits but the upper GIT endoscopy has reported LA grade 1 oesophagitis which is a low-grade form of gastro-oesophageal reflux.
Dr Garvey went on to provide the following explanation of his calculations: Opioid medications cause relaxation of the lower oesophageal sphincter allowing stomach contents to reflux into the oesophagus causing irritation and inflammation. The second way in which opioids can contribute to the development of gastro-oesophageal reflux is by delayed gastric emptying, that is opioids can slow down the movement of food through the digestive tract leading to delayed gastric emptying. Thus, this Worker has objective clinical evidence of reflux and taken with his history merits 2% WPI under Clause 16.9 of the SIRA guides. Constipation merits 0% WPI under the SIRA guidelines because it is not considered a permanent impairment.
Dr Garvey deducted half the impairment assessment because of the effects of pre-existing hiatus hernia.
In commenting on the assessment by the MA, Dr Garvey said that the MA was in error by assessing 0% WPI for upper digestive tract. He said: Although "relatively mild upper abdominal tenderness" is a vague physical sign and may not qualify as a clinical sign by itself under the SIRA guides, this Worker has other objective clinical evidence of upper digestive tract impairment being LA grade 1 reflux oesophagitis, endoscopy proven, meriting 2% WPI with one half deducted for the effects of hiatus hernia.

Ground 6: Error of law by failing to apply correctly the Guidelines in assessing the upper digestive tract.

The plaintiff was critical of the MAP for adopting the findings of Dr Garvey, when Dr Garvey did not address the intervening period of time nor the intervening relevant treatment of the Helicobacter pylori infestation. In that way, the plaintiff submitted, the endoscopy report and investigations were therefore inadequate to rely on to find an objective sign of digestive tract impairment. The plaintiff submitted that Dr Garvey made no mention of the Helicobacter pylori treatment post endoscopy which was the objective "sign" relied upon for paragraph 16.9 of the Guidelines.
The first defendant submitted that the plaintiff's acceptance that the endoscopy and pathological investigations are evidence of objective investigations means that they are not inadequate to be relied upon as an objective sign. The first defendant submitted that Dr Garvey applied the Guidelines as required, and exercised his specialist medical expertise in doing so. Reliance was again placed on Lancaster. The first defendant submitted that Dr Garvey did address the intervening period by referencing the treating evidence and the medico-legal reports.

Ground 7: Failure to give adequate reasons why mild abdominal tenderness amounted to a 'sign' of digestive tract disease

The plaintiff submitted that the MAP did not provide reasons as to why such a finding of mild abdominal tenderness was a sign as opposed to a symptom.
The first defendant submitted that Dr Garvey did not only rely on the finding of mild upper abdominal tenderness as the sign. Rather, he went on to refer to "other objective clinical evidence of upper digestive tract impairment". In that way his reasons were adequate.

Ground 8: Failing to address submissions made by the plaintiff in relation to the finding of mild abdominal tenderness

The plaintiff submitted that the MAP's reasons did not address the submissions made by the plaintiff that mild upper abdominal tenderness was a symptom as opposed to a sign.
The first defendant repeated its submissions made in answer to ground 2: see [27] above.

Ground 11: Failing to provide adequate reasons as to why the findings on endoscopy were held to be sufficient to establish signs

The plaintiff submitted that the MAP did not provide reasons which engaged with the controversy between the parties in relation to whether the findings on endoscopy were sufficient to establish signs as opposed to symptoms.
The first defendant submitted that Dr Garvey clearly engaged with the fact that treatment had been provided in respect of the Heliobacter pylori infection, with symptoms remaining post treatment.

Consideration

It is convenient to deal with the grounds concerning the digestive tract together. As with the lumbar spine issue, the problem in relation to the digestive tract is, again, the reasons for the conclusion reached. The MAP simply adopted Dr Garvey's findings and made no further comment about the issue. Accordingly, determination of the issue turns on the adequacy of the way it was dealt with in the reasons of Dr Garvey.
Paragraph 16.9 of the Guidelines provides: 16.9 Effect of analgesics on the digestive tract AMA5 Table 6-3 (p 121) Class 1 is to be amended to read 'there are symptoms and signs of digestive tract disease'. Nonsteroidal anti-inflammatory agents, including Aspirin, taken for prolonged periods can cause symptoms in the upper digestive tract. In the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration a 0% WPI is to be assessed.
The evidence suggested that three matters might have contributed to the gastro-oesophageal reflux from which the first defendant suffered. There was the hiatus hernia, the opioids the first defendant was taking as a result of the injury, and the Heliobacter pylori infection. The first defendant had reported that the symptoms developed within about two months of commencing the opioids.
The endoscopy carried out by Dr Chen in August 2021 identified the hiatus hernia, the chronic inflammation evidence of reflux and gastritis and the Heliobacter pylori. The Heliobacter pylori was eradicated by 2023, before Dr Garvey saw the first defendant. Dr Berry said in his report of 27 July 2022 that even when the Helicobacter infection is eradicated, the patient remains symptomatic, and follow up gastroscopies often find that there is still residual gastritis.
Dr Garvey said, following what the treating gastroenterologist (Dr Chen) said, that the history of gastroesophageal reflux was consistent with the side effects of opioid medications. Dr Garvey explained why that was so. He then concluded that the first defendant had objective clinical evidence of reflux which merited a 2% WPI. However, he deducted 1% by reason of the hiatus hernia.
The Guidelines require both a sign and a symptom. While Dr Garvey acknowledged that "relatively mild upper abdominal tenderness" was a vague physical sign and might not qualify under the Guidelines, he went on to say that the first defendant had objective clinical evidence of upper digestive tract impairment, being LA grade 1 reflux oesophagitis "endoscopy proven".
It seems to me, however, that that conclusion is question-begging because the endoscopy, taken two years earlier, identified the Helicobacter pylori (something likely to have contributed to the gastritis and the reflux), which had subsequently been eliminated. If there was other objective clinical evidence, Dr Garvey does not say what it is. It seems to me, therefore, that no "sign" has been identified to bring the first defendant within the Guidelines for upper digestive tract impairment. Dr Garvey appears to accept the upper abdominal tenderness might not qualify as a "sign" under the Guidelines, and it is difficult to see how it could be regarded as anything other than a symptom.
While the oesophagitis was a sign, shown on the endoscopy, that was at a time when the Heliobacter pylori infection had not been treated. It was not a sign that identified the opioids as the cause of the oesophagitis. Dr Garvey does not explain how the Heliobacter pylori is not a relevant consideration as the cause in the light of what Dr Berry has said about the persistence of gastritis and its symptoms after the infection's treatment.
The first defendant in his submissions placed a great deal of emphasis on Dr Garvey's expertise as a general surgeon in reaching his view about the causes of the reflux. The problem is that his reasons do not adequately consider the competing contentions about the cause of the ongoing impairment constituted by the reflux. The matter is made more difficult because the last section of his assessment is said to be "Answers to the specific questions raised by the Medical Appeal Panel", but those questions are not set out despite the importance of what is contained in that section of his report to justify his overall finding of 1% WPI.
In my opinion, the reasons of the MAP are inadequate to explain the conclusion reached by the MAP in adopting Dr Garvey's assessment. The assessment as it concerns the digestive tract issue should be quashed.

Conclusion

I make the following orders:
Quash the whole of the decision made by the third defendant on 5 April 2023 and the Medical Assessment Certificate dated 4 April 2023.
Remit the matter to the second defendant for referral to a differently constituted Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for redetermination according to law.

Amendments 17 November 2023 - Orders amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2023

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