Cullen v Woodbrae Holdings Pty Ltd

Supreme Court of NSW|2015-09-11|Before: Beech-Jones J

Judgment

The plaintiff in these proceedings, Kevin Wayne Cullen, seeks to invoke this Court's supervisory jurisdiction confirmed by s 69 of the Supreme Court Act 1970 to seek judicial review of a decision of the second defendant made under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 ("WIM Act") and a certificate issued by the third defendant under s 294 of the WIM Act.
The second defendant is the persons who constituted a Medical Appeal Panel ("MAP") in accordance with s 328(1) of the WIM Act. On or about 3 February 2015 the MAP determined to revoke an earlier medical assessment certificate issued in respect of Mr Cullen and issue a new certificate substituting a whole person impairment of 10%.
The third defendant to these proceedings is the Registrar of the Workers Compensation Commission of NSW (the "Registrar"). On or about 12 March 2015 the Registrar issued a certificate recording that Mr Cullen's whole person impairment was 10% and that, as a consequence, he was not entitled to an award of lump sum compensation under s 66(1) of the Workers Compensation Act 1987 (NSW) (the "WCA").
The first defendant to the proceedings is the plaintiff's former employer, Woodbrae Holding Pty Ltd ("Woodbrae"). Woodbrae opposed Mr Cullen's application. Neither the Registrar nor the MAP took an active part in the proceedings.
In summary Mr Cullen contended that the decision of the MAP was affected by an error of law on the face of the record or a jurisdictional error in two respects. The first was in concluding that s 323 of the WIM Act could be applied on the basis of degenerative changes occurring contemporaneously with the "injury" suffered by Mr Cullen. The second was in applying s 323 when there was no evidence that he suffered from an injury or was subject to a condition at the time he commenced his employment in 1978. For the reasons that follow I uphold the first ground. The consequence is that both decisions that are challenged will be set aside.

Background

In 1978, when he was eighteen years of age, Mr Cullen commenced work with Woodbrae which operated an abattoir. Some time around 2000 to 2002 he began to experience pain in both his hips. On 14 July 2004 he ceased work at around the time that Woodbrae ceased trading.
After Mr Cullen left work he continued to experience difficulties with his hips. In 2008 he had an X-ray revealing severe bone on bone osteoarthritis on both his hips. His right hip was replaced in 2008 and his left hip was replaced in 2010.
On or about 14 December 2012 Mr Cullen filed an application to the Workers Compensation Commission. Seeking to invoke s 15 and s 16 of the Workers Compensation Act 1987 (the "WCA") Mr Cullen described one component of his claim as seeking compensation in respect of the following: "Arising out of or during the course of the Applicant's employment as a slaughterman, he has contracted degeneration of his right hip, left hip, shortening of the left lower extremity, being a disease of such a nature as to be contracted by a gradual process to which such employment as a slaughterman was a substantial contributing factor. For a number of years prior to [14 July 2004], the applicant was employed in the meat industry and this type of employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and/or deterioration …"
On or about 28 February 2014 the Registrar of the Workers Compensation Commission issued a certificate of determination under s 294 of the WIM Act. The certificate was said to have been issued with the consent of the parties. It made provision for certain awards to be made to Mr Cullen, and also included the following: "3. The applicant suffered injury to his left hip and right hip (deemed date of injury 14 July 2004) and the Respondent [Woodbrae] has liability in respect to such injury. The matter is remitted to the Registrar for referral to approved medical specialist to assess any resulting whole person impairment including any deduction under s 323 of the [WIM Act]. … The Registrar may refer the applicant to attend a medical examination by an approved medical specialist/s ("AMS") as arranged by the Commission pursuant to Chapter 7 Part 7 of the Workplace Injury Management and Workers Compensation Act 1998, if so, the AMS referral request will note matters including the following agreed by the parties: Date of injury: 14 July 2004 Body part referred for assessment: Left lower extremity, right lower extremity. Method of assessment: Whole person impairment …"
The reference to the "deemed date of injury" in this extract needs some explanation. As noted, Mr Cullen had relied upon the disease and exacerbation provisions found in s 15 and s 16 of the WCA. They relevantly provided as follows: "15(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. …" "16(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease: (a) the injury shall, for the purpose 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. …"

The medical assessment

Consistent with the consent determination, the Registrar referred the medical dispute about the degree of whole person impairment suffered by Mr Cullen for assessment. The dispute was referred to an approved medical specialist, Dr Machart.
On 11 June 2014 Dr Machart issued a certificate with accompanying reasons under s 325 of the WIM Act. Dr Machart concluded that Mr Cullen developed osteoarthritis in both hips and that, despite having both hips replaced, he was experiencing ongoing symptoms of pain and stiffness. He assessed his whole person impairment at 36% reflecting an assessment of 20% for each of his left and right hips. In one part of his reasons which addressed the question of whether there should be a deduction due to his previous injury or pre-existing condition or abnormality, Dr Machart stated as follows: "Deductions apply Mr Cullen developed severe, bilateral bone on bone osteoarthritis in the hips. It cannot be concluded that the osteoarthritis was entirely caused by the 'injury'. It could be concluded that [the] nature and conditions of employment, with the description of 'injury', caused aggravation of osteoarthritis, causing the need for bilateral hip replacements to be conducted earlier than they would have been otherwise. I have no doubt that total hip replacements would have been needed, irrespective of his employment, even if he was not employed by the abattoirs. The description of 'injury' was not a case of severe trauma, not all that different [from] the type of day to day activities the human body was designed to cope with. Therefore the pathology and the consequent impairment cannot be attributed to the 'injury' alone. Other constitutional factors are more predominant, as the most commonly known cause of osteoarthritis in the hips. Bilateral disease is evident. This is suggestive of primarily constitutional factors. My assessment is that 3/4 deduction exists. This is because the aetiology is predominantly constitutional, with some impact from 'work injury'. The work injury did not cause the osteoarthritis, but aggravated and probably accelerated the arthritis, to the point where total hip replacement was probably conducted a little earlier than [it] would have been otherwise." (emphasis added)
This part of Dr Machart's assessment was said to reflect the application of s 323 of the WIM Act, which 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 approved medical specialist 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."
In the end result Dr Machart assessed the impairment of each extremity as 20% which led to a 34% whole person impairment. However in conducting his deduction for three-quarters impairment Dr Machart made a mathematical error which resulted in Mr Cullen receiving a whole person impairment of 14% rather than 10%.

The appeal to the Medical Appeal Panel

On or about 19 June 2014 Mr Cullen filed an application to appeal Dr Machart's assessment. The application required him to identify the grounds of appeal under s 327(3)(a) to (d) in the WIM Act. His application form stated that Dr Machart's certificate contained a "demonstrable error" (s 327(3)(d)).
In a written submission accompanying the application it was submitted on behalf of Mr Cullen that there was no basis for the making of any deduction under s 323 of the WIM Act as follows: "The Appellant submits that there is no basis for any s 323 deduction for any body part assessed given the nature of the claim, or the maximum that should be deducted is 10% in accordance with s 323(2). The injury has a deemed date of injury where the worker was claiming disease of gradual process or aggravation, exacerbation, acceleration or deterioration of a disease or gradual process. There was no evidence of any pre-existing condition, abnormality or previous injury that contributed to part of the assessable impairment." (emphasis added)
The submission then referred to the judgment of Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [29] to [31] as authority for the proposition that to apply a deduction under s 323 a conclusion based on evidence was required that "the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment" (at [29]).
This submission was opaque. The reference to the "nature of the claim" appears to be a reference to the gradual process of onset of osteoarthritis or aggravation over the entirety of his employment. The main complaint was that there was no evidence that Mr Cullen had a pre-existing condition. In this Court it was accepted that this was a complaint that such a condition had to pre-date his employment and that there was no evidence that it did. However, it is not clear that that was the point being made and that is not helped by the reference to Cole which concerns a completely different proposition namely that there had to be a conclusion based on evidence that the pre-existing condition contributed to the impairment. If it was accepted that osteoarthritis was a pre-existing condition for the purposes of s 323 then a conclusion to that effect was medically obvious.
Woodbrae filed a response. In its submissions it referred to Mr Cullen's complaint that there was "no evidence of any pre-existing condition, abnormality or previous injury that contributed to part of the assessable impairment". In response it referred to an X ray of Mr Cullen's pelvis and hips that was conducted on 7 January 2008 which was said to show "severe bone-on-bone osteoarthritis".
Woodbrae's response also contained the following request: "16. The respondent, independently of this notice of opposition, will apply to the registrar seeking the AMS reconsider an aspect of his MAC pursuant to section 329 of the [WIM] Act. 17. Specifically, it appears the AMS miscalculated the applicant's final impairment after making his section 323 deductions. With respect to each hip, the AMS assessed 20% WPI. To this, the AMS determined a ¾ deduction ought to apply. This, the respondent says, ought to have led the AMS to conclude the appellant had sustained a final 5% WPI with respect to each hip, rather than the 7% WPI which appears on the MAC. 18. Accordingly, the respondent submits the correct final assessment for the date of injury of 17 July 2004 ought to have been 10% WPI."
No material was placed before the Court concerning the approach taken by the Registrar to either Mr Cullen's application to appeal or Woodbrae's request under s 329. It is known that Mr Cullen's appeal was referred to the MAP pursuant to s 328 of the WIM Act. From that it can be inferred that the Registrar was satisfied "on the face" of his application that at least one of the grounds specified in s 327(3) of the WIM Act was made out (s 327(4)) (see [15]). I address the application made by Woodbrae under s 329 below.
Mr Cullen fared worse on his appeal. The MAP upheld Dr Machart's medical findings and his three-quarter deduction. They also corrected Dr Machart's mathematical error to yield a whole person impairment of 10%. This had the effect that Mr Cullen was unable to exceed the threshold for obtaining compensation in accordance with s 66(1) of the WCA.
Reasons were included as part of the MAP certificate (WIM Act, s 325(2)(c)). Those reasons form part of the "record" (Supreme Court Act; s 69(3)). In the reasons the MAP recited the effect of the submissions made on behalf of Mr Cullen including the specific complaint that there was no evidence of a pre-existing condition. The MAP referred to Dr Machart's reasons in detail. They extracted the passage that I have set out above (at [12]). The MAP also noted the effect of the X-ray referred to by Woodbrae in its submissions.
The critical part of the MAP's reasons was as follows: "29 The panel notes that there is no evidence of symptoms prior to 2002 in the hips, and no imaging studies until January 2008, after the deemed date of injury. However this does not mean, as submitted by the appellant, that there should no deduction in the assessment for the pre-existing degenerative osteoarthritis. With this worker's condition it is not making assumptions or projecting a hypothesis to calculate the appropriate deduction under s 323. The evidence as to the nature of the work, the course of the condition, including the onset of symptoms in 2002, and the 2008 imaging are all relevant to assessing what is clearly a primarily degenerative condition. The progressive nature of osteoarthritis, and its causes, is very well known medically. 30. The AMS [ie Dr Machart] explains at some length his clinical analysis of the proportion of the impairment caused by the pre-existing condition. He accepts there was some aggravation from the work which may have brought forward the inevitable total hip replacements somewhat. He notes there was no severe trauma involved; and the bilateral progression of the condition at similar rates, factors indicating predominantly constitutional pathology. … 33 The AMS here has applied his clinical judgment and his conclusions are consistent with the evidence. The panel discerns no error in the three-quarter deductible proportion of the assessment found appropriate by the AMS."
The balance of the MAP's reasons dealt with the mathematical error noted above. They stated: "33. The AMS here has applied his clinical judgement and his conclusions are consistent with the evidence. The Panel discerns no error in the ¾ deductible proportion of the assessment found appropriate by the AMS. 34. The Panel notes the submissions of the respondent to the appeal, set out above, in respect of the obvious error in the figures shown in Table 2 of the MAC. These were more in the nature of flagging an application under s. 329 for reconsideration by the AMS with a view to correcting the calculation error. The Panel notes that the appellant has not filed any submissions in response to this issue raised by the respondent. With a matter raised by a party not previously notified, considerations of procedural fairness may require the opportunity be given to other parties to respond before a determination is made. In this instance however, the Panel is satisfied that that matter is an obvious and simple error in the mathematical calculations applying the s.323 deduction, and as such can be dealt with by the Panel as part of the appeal without further delay. 35. The Panel agrees that the s.323 deduction of ¾ applies to the assessment of 20 per cent for each extremity, as set out by the AMS in Table 2. However, the AMS arrives at 7 per cent for each in the final column, rather than the correct outcome of 5 per cent WPI for each. 36. This obvious error in the calculation is a demonstrable error on the face of the Certificate. The grounds of appeal involve the application of s.323 of the 1998 Act; therefore the Panel is able to address the issue and correct the errors found: NSW Police Force. As discussed above the deduction of ¾ applied to 20 per cent WPI for each extremity gives 5 per cent WPI for each, and a total of 10 per cent WPI overall. This is reflected in the new Table below."
The reference to "NSW Police Force" in this passage is a reference to the judgment of Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 which is addressed below (at [35]).
As noted after correcting the error the MAP assessed Mr Cullen's whole person impairment as 10%.

The Registrar's certificate

On 12 March 2015 the Registrar issued a certificate of determination under s 294 of the WIM Act recording a determination that Mr Cullen suffered a 10% whole person impairment and that, as a consequence, he had no entitlement to lump sum compensation resulting from his injury on 14 July 2004 under s 66(1) of the WCA. No separate argument was directed to the invalidity of this certificate. Instead it appears to have been accepted that, if the MAP assessment was set aside, then it would have to follow that this certificate would also be set aside as the conclusion concerning Mr Cullen's degree of whole person impairment was based on the MAP assessment. I will proceed on that basis.

Review Panel's function

I have already referred to some of the provisions concerning the MAP's functions. In light of the manner in which the MAP's reasons are expressed it is appropriate at the outset to explain the nature of the review it was conducting. Sections 321 to 326 of the WIM Act confer on an approved medical specialist power to undertake an assessment of a "medical dispute". A medical dispute is defined in s 319 as: "'medical dispute' means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable."
Section 324(1) confers on the medical specialist authority to take certain steps including consulting with a medical practitioner or requiring the worker to submit to a medical examination. Section 324(3) confers a similar authority on a specialist who is a member of a MAP. Section 325(1) obliges the specialist to issue a certificate following their assessment.
Sections 327 and 328 of the WIM Act deal with appeals from such assessments and s 329 deals with further assessments. They relevantly provide: "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 an approved medical specialist 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 Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out. … 328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an [MAP] constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) 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. The WorkCover Guidelines can provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. … (5) The [MAP] may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. … 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 Registrar 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 Registrar to the approved medical specialist 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." (emphasis added)
Previously, s 328(2) provided that the "appeal is to be by way of review of the original medical assessment". In Siddik v Work Cover Authority of New South Wales [2008] NSWCA 116 at [95] to [101] McColl JA (with whom Mason P and Giles JA agreed) discussed the scope and nature of that form of review. Her Honour held that it creates a "novel form of appeal" (at [100]) being something of a mixture between an appeal by way of rehearing, which requires the identification and correction of error (Branir v Owston Nominees (No 2) [2001] FCA 1833; 117 FCR 424 at [24]), and a hearing de novo. In particular, once the MAP has concluded that one of the grounds specified in s 327(3) had been established, then it had the power "to conduct the assessment anew" (Siddik at [97]). Further her Honour found that that form of s 328(2) did not restrict the MAP to the grounds of appeal identified by the parties or the Registrar under s 327(4). Instead "while prima facie the [MAP] is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard" (at [101]).
Section 328(2) in its current form was introduced with effect from 1 February 2011 by the Workers Compensation Legislation Amendment Act 2010 (schedule 2; item 14). In Inghams Enterprises Pty Ltd v Valentina Lakovska [2013] NSWSC 1489 at [25], Hidden J noted the above passages from Siddik and then described the effect of the amendment to s 328(2) in the following terms: "Plainly enough the amendment to s 328(2) was directed to her Honour's conclusion at [101] [of Siddik] that the panel could consider grounds other than those which had been referred to it by the Registrar. Subject to that, however, her Honour's explanation of the nature of a review under the section remains apposite. Relevant for present purposes is her conclusion at [95] that the grounds under s 327(3)(c) and (d), the use of incorrect criteria or demonstrable error, point to an appeal by way of rehearing in which error must be identified."
An application for leave to appeal from Hidden J's judgment was dismissed by the Court of Appeal: Ingham Enterprises Pty Ltd v Lakovska [2014] NSWCA 194. Barrett JA, with whom Gleeson JA agreed, described the amended s 328(2) in similar terms to Hidden J and noted that its effect is to create a procedure whereby "a party appealing must frame its own grounds of appeal applicable to a particular case, being grounds within the scope permitted by s 327(1)" (at [39]).
Further in New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 at [52] Davies J held that the phrase "the grounds of appeal on which the appeal is made" in s 328(2) was "directed to greater particularity than simply categorising the appeal as being within one or more of the grounds in s 327(3)". Instead s 382(2) refers to the grounds as specified in the submissions accompanying the appeal (at [49]).
Thus the threshold for mounting an appeal is the Registrar being satisfied "on the face of the application" that at least "one of the grounds for appeal specified in [s 327(3)] has been made out" (s 327(4)). Subsection 328(2) provides that the MAP's function is to be by way of review of Dr Machart's assessment but that that review is limited to the grounds of appeal on which the appeal is made being the matters alleged by the appellant (which in turn must amount to one of the grounds specified in s 327(3)).
In this case the only ground of appeal that was raised was one of demonstrable error. The demonstrable error was said to be in the application of s 323. As stated the formulation of the precise error or errors was opaque, but it included the contention "that there was no evidence of any pre-existing condition, abnormality or previous injury that contributed to part of the assessable assessment".
In this case, in so far as the MAP addressed Mr Cullen's application to appeal, it concluded that no demonstrable error of the kind he alleged was established under s 327(3)(d) and it considered that completed its function in respect of his appeal. However the basis upon which it interfered with Dr Machart's assessment is unclear. Although Woodbrae applied under s 329 there is nothing to suggest that the Registrar allowed that application and referred the assessment to the Appeal Panel assuming that was even possible. Instead it appears that the Appeal Panel treated Woodbrae as having appealed in its own right and as having established a demonstrable error. Two matters should be noted about that. First there is nothing to suggest that the Registrar had first determined that error was satisfied "on the face" of the application that that error had been made out (s 327(4)). Second it is at least arguable that, once the MAP concluded that there was a mathematical error in Dr Machart's assessment, then s 327(3)(d) was satisfied and there arose an obligation or at least a power to "conduct the assessment anew" (Siddik at [97]; see [32]). However no complaint was made in respect of this aspect of the MAP's approach and it is not necessary to consider it further.

Section 323 and pre-existing conditions

Before addressing the particular point raised by Mr Cullen it is necessary to address the meaning of "condition" in s 323 . There is no relevant definition of "condition" in either the WIM Act or the WCA Act. The ordinary meaning of "condition" in this context is a "state of being, specifically in reference to physical and mental health or wellbeing" (Mosby's Dictionary of Medicine, Nursing & Health Professions). In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43] Basten JA (with whom McColl and Handley JJA agreed) held that: "The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury."
After the hearing the parties filed written submissions which, inter alia, debated the meaning of condition in the context of two of the decisions cited by Basten JA as authority for this principle namely D'Aleo v Ambulance Service of New South Wales [1996] NSWCCR 139 ("D'Aleo") and Mathew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 ("Hall"). Both D'Aleo and Hall concerned an earlier version of s 323 of the WIM Act, namely s 68A of the WCA. In relation to D'Aleo, Mr Blount noted that the argument put forward by the appellant in that case was similar to that of Mr Cullen, namely that (at 141): "Shortly put, the appellant's argument was that as there was no evidence of any back impairment prior to the work injuries complained of, s68A did not permit a deduction from a worker's s66 entitlement in respect of permanent impairment of the back when, but for work injuries, his spine would be normal for his age and not impaired. The argument was that s 68A permitted a deduction only in respect of a pre-work injury back impairment. Pre-injury asymptomatic back deterioration could not be considered in determining whether there was a 'deductable proportion' within s68A".
This argument was rejected by Cole JA (with whom Handley JA and Cohen AJA agreed) stating (at 144C-D): "Prior non-compensable injuries, pre-existing conditions or abnormalities result in a deductable proportion being determined for which the employer liable in respect of the injury causing the permanent impairment of the back, neck or pelvis is not to be responsible. The words 'any pre-existing condition' in my view include a degenerated back caused by the advent of age." (emphasis added)
Earlier Cole JA had described this latter aspect as "degeneration in his lumbar spine to which we are all heirs as a result purely of the aging process that s 68A should be applied".
In his submissions in reply dated 18 September 2015, Counsel for Mr Cullen, Mr Dodd, sought to limit the emphasised statement to the facts of D'Aleo. In particular he contended that D'Aleo is not "relied upon to suggest that 'primarily degenerative conditions' form any part of a pre-existing condition" (at [9]). However that is exactly what D'Aleo states and it was treated as such in Hall at [30] to [31] although it must be remembered that the statement refers to a "degenerated" back, that is a back that has already begun such a process. Mr Dodd also submitted that D'Aleo "cannot be relied upon to suggest that co-existent degenerative changes can be a factor taken into account under section 323 of the WIM" (at [11]). As I understand by "co-existent" Mr Dodd means degenerative changes that occur at or around the same time as the gradual process referred to in s 15 of the WCA and the aggravation etc referred to in s 16 of the WCA. For present purposes that can be accepted, except that if those changes are the result of a "condition" that pre-dated the relevant time even though it was asymptomatic, then that will be sufficient to establish a pre-existing condition.
In Hall the Respondent suffered an accident to his eye at work in 1990. He experienced blurry vision and in 1997 he applied for workers compensation. An issue arose concerning the application of former s 68A of the WCA because, by the time of his application, he suffered from keratoconus which was a congenital condition that distorts part of the eyeball (at [8] to [9]). A person's congenital predisposition towards keratoconus was one that might never manifest itself or may have caused his symptoms in any event (at [9]). After discussing D'Aleo Giles JA posited the three possibilities that arose in relation to former s 68A and the Respondent's keratoconus namely (at [33]): "In the present case there are three possibilities - (a) while the worker had a genetic pre-disposition to keratoconus, prior to the incident of 23 October 1990 he did not have the condition of keratoconus: on this basis, s 68A(1) does not apply; (b) prior to the incident of 23 October 1990 the worker had the condition of keratoconus, although it was asymptomatic, but the loss of vision was not due to any extent to that condition; again, on this basis s 68A(1) does not apply; and (c) Prior to the incident of 23 October 1990 the worker had the condition of keratoconus, although it was asymptomatic, and the loss of vision was to some extent due to that condition; on this basis, s 68A(1) applies, and if the circumstances addressed by s 68A(6) obtain there must be a deduction of 10 per cent of the loss." (emphasis added)
Of present relevance is the distinction between examples (a) and (c). Ultimately Giles JA concluded (at [37]): "The employer accepted that it bore the burden of proving that to some extent the worker's loss of vision was due to a pre-existing condition of keratoconus. In my opinion a genetic predisposition to keratoconus is not the same as the condition of keratoconus for the purposes of s 68A(1). I do not think the employer established that there was a pre-existing condition of keratoconus - that is, that there was more than a genetic predisposition to keratoconus which may never have progressed to loss of vision, being a condition of keratoconus albeit an asymptomatic condition." (emphasis added)
This reasoning is equally applicable to s 323 of the WIM Act. Thus to establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition.

Erred in applying s 323 to contemporaneous disease and no evidence of pre-existing injury

In his written submissions Mr Dodd appeared to raise two separate but related complaints about the MAP's decision. The first was that the MAP erred in so far as it concluded that s 323 of the WIM Act could be applied on the basis of degenerative changes occurring contemporaneously with the "injury suffered" by Mr Cullen (written submissions dated 20 July 2013 at [7]). The second was that, in light of the injury that was accepted as having been suffered, the only basis upon which the MAP could have applied s 323 was if it found that there was previous injury or a pre-existing condition or abnormality being one that predated his employment and there was no evidence to support that contention (written submissions dated 20 July 2013 at [7] and [13]).
The competing case put by Counsel for Woodbrae, Mr Blount, was that the MAP found that Mr Cullen had a "condition" that predated his employment and there was some evidence to support that finding.
The starting point is the (apparently) agreed basis between the parties as to what the proper application of s 323 required in the circumstances of Mr Cullen's case. Mr Dodd submitted that the effect of the consent order was to establish that his client had suffered an injury within the meaning of s 4 of the WCA which as at July 2004 provided: "'injury': (a) means personal injury arising out of or in the course of employment, (b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and (c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined."
Further, as at that time, s 9A of the WCA precluded an award of compensation "in respect of an injury unless the employment concerned was a substantial contributing factor to the injury".
Mr Dodd submitted that the nature of the injury was one to which s 15 or s 16 applied in that it was one that involved, in the case of s 15, a "gradual process" of onset of the disease or, in the case of s 16(1), consisted of the aggravation, acceleration, exacerbation or a deterioration. In both cases he submitted that gradual process or aggravation related to the entire period in which his client was employed by Woodbrae. He contended that it followed that, in order for s 323 to be applicable, it was necessary for there to be evidence capable of supporting a finding that as at the time his client commenced employment in 1978 he was subject to an existing injury, condition or abnormality. As stated, Mr Blount accepted that was the case but contended that there was such evidence.
I have set out the critical part of the MAP's reasons above. Those reasons must be considered on the basis that "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272).
Even allowing for this approach I experienced considerable difficulty in ascertaining from the MAP's reasons what point of time, if any, the MAP considered that Mr Cullen's osteoarthritis had to predate in order to be a "pre-existing condition". During the course of oral submissions I raised with Mr Dodd whether the proper construction of [29] of the MAP's reasons set out at [24] above was that the relevant time for determining whether injury, condition or abnormality existed was prior to the deemed date of injury referred to in s 15(1) and s 16(1) of the WCA (ie 18 July 2004) rather than prior to the commencing of his employment. Mr Dodd did not embrace that construction and Mr Blount argued strongly against it presumably on the basis that that would be erroneous.
Instead Mr Dodd effectively submitted that the MAP's approach, like that of Dr Machart, was to assume that degenerative changes could be addressed under s 323 without the necessity of identifying whether there was a "condition" that predated any particular point in time and, in particular, the period of time prior to his employment. Instead the MAP considered it was sufficient if the condition arose independently of a person's employment even if contemporaneously. Thus in his further written submissions at [5] he submitted: "There is nothing in the MAP decision to indicate that it considered that the Plaintiff had any osteoarthritis (or predilection or susceptibility to osteoarthritis) when the Plaintiff commenced employment at the abattoir as an 18 year old in 1978."
As an aspect of this, Mr Dodd submitted that the MAP's approach was more akin to what might be undertaken if it was determining a medical dispute as to whether "the degree of permanent impairment of the worker [was] a result of the injury" in s 319(c) of the WIM Act and, in particular, so much of the definition of the "injury" in s 4 of the WCA that required an assessment of the contribution made by Mr Cullen's employment to either the contraction of the disease or its aggravation or acceleration or that part of former s 9A of the WCA that required the employment be a "substantial contributing factor".
Clearly the MAP endorsed Dr Machart's reasons which identified Mr Cullen's osteoarthritis as "constitutional" in nature ("constitutional pathology"). The MAP also referred to the "pre-existing degenerative osteoarthritis" and what was a "primarily degenerative condition". There is no doubt that this reasoning posits the existence of a "condition" in the sense explained above at some point but when? At no point in its reasons does the MAP identify any point in time much less prior to his employment commencing when Mr Cullen may have first developed osteoarthritis albeit asymptomatic. Further in referring to his osteoarthritis as "constitutional" the MAP did not explain whether he always had that condition, a conclusion that would be medically surprising, or always only had a susceptibility or a predisposition, which is presumably the case for every person to varying degrees but which is not sufficient (see [46]). In one sense this is understandable given the manner in which the submissions in support of the appeal were expressed. However the contention that there was no evidence that Mr Cullen suffered from, inter alia, a pre-existing condition required the MAP to identify a condition that existed at some point which on this application, it was common ground, had to predate his employment, given the nature of the injury.
Overall, the approach of the MAP was to treat a pre-existing condition as a condition that existed outside the course of employment whereas in this case it had to be a condition that existed prior to Mr Cullen's employment. As noted, Mr Blount repeatedly asserted that there was evidence to support such a finding. However that contention travels nowhere as the MAP did not make such a finding. Instead the MAP concluded that once it was established that Mr Cullen had osteoarthritis that had a "constitutional pathology" then it automatically followed that it was a pre-existing condition. In this case that approach was erroneous in law and constitutes an error of law on the face of the record (and that is the case irrespective of whether the condition had to pre-date the commencement of his employment or some later time).
It follows that, on the view I take of the MAP's reasons, no question arises as to whether there was any evidence to support a finding that Mr Cullen was afflicted by a condition that existed prior to the commencement of employment because no such finding was made. However for the sake of completeness I note the following. In Insurance Australia Ltd v O'Shannessy [2015] NSWSC 1047 at [63] to [68] I concluded that an error of law on the face of the record is not established by pointing to a finding of fact in respect of which there is said to be no evidence. This is so because to demonstrate that matter necessarily, or at least usually, requires a review of material that extends beyond the face of "the record". However, if the relevant fact has a jurisdictional quality then it can be reviewed on the basis that it is not supported by some probative material or by logical grounds and that can involve consideration of all the material before the MAP (see the cases discussed in O'Shannessy at [59] and [75] to [79]).
No submissions were directed during the course of argument as to whether a finding as to the existence of a previous injury or a pre-existing condition or abnormality had jurisdictional quality in the context of the performance by a MAP of its functions under s 328. However, it follows from the discussion at [29] to [38] that the existence of a ground of appeal under s 327(3) is a matter that goes to the jurisdiction of the MAP. Unless such a ground is established the MAP cannot interfere with Dr Machart's assessment. In this case the relevant ground of appeal was said to be "demonstrable error" which included a complaint that Dr Machart supposedly made a finding of a pre-existing condition which had no evidence to support it. If the MAP rejected that complaint by making a finding that had no evidence to support it then it would have arrived at a conclusion that no grounds of appeal were made out, that was itself erroneous in law. By this path of reasoning it can be concluded that this aspect of the error asserted by Mr Dodd raises a complaint of jurisdictional error. That said, a no evidence complaint faces formidable difficulties in the context of a medical opinion formed by a MAP consisting of three medical practitioners. They were entitled to bring their own medical expertise to bear upon that question (see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [47]).
For the reasons set out above I uphold the complaint of error of law on the face of the record.

Other potential ground: erred in failing to address the definition of injury

I have referred above to the submission that Mr Dodd made concerning the approach adopted by the MAP to Mr Cullen's appeal and how it was more akin to an assessment of a medical dispute as to "the degree of permanent impairment of the worker as a result of the injury" as referred to in s 319(c) of the WIM Act rather than a proper application of s 323 ([53]). At one point in his oral submissions Mr Dodd appeared to contend that the MAP erred in law in not undertaking such an assessment. If that was the contention then it has no substance given the constraints on the MAP's appeal function described above. That said it follows that, if on a further consideration of Mr Cullen's appeal, the MAP concludes that a demonstrable error of the kind articulated has been established then it will be able to conduct an "assessment anew" (Siddik at [97]) and that may embrace that issue.

Orders

It follows that I will order that the decision of the MAP be set aside and, for the reason noted in [22], the Registrar's certificate will be set aside. I will also order Woodbrae to pay Mr Cullen's costs of the proceedings. If any party seeks to vary the costs order they can apply within the time provided for in Uniform Civil Procedure Rule 36.16(3A).
Accordingly the Court orders that: 1. The decision of the Second Defendant dated 3 February 2015 be set aside; 2. The decision of the Third Defendant dated 12 March 2015 be set aside; 3. The First Defendant pay the Plaintiff's costs of the proceedings. 4. There be no order as to the Second and Third Defendants' costs.

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