Sawaneh v Flintwood Disability Services Ltd

The assessment by the Medical Assessor

1. On 11 March 2022, the Medical Assessor issued a certificate in which he assessed the applicant as suffering 16% WPI as a result of the 2020 injury, of which 11% was referable to the applicant's lumbar spine.
2. In his reasons, the Medical Assessor noted that the injury which had been referred to him for assessment was the 2020 injury and he had examined the applicant on 9 March 2022. He recorded that she gave the following history of a previous injury (the 2019 injury): "In 2019 she injured her back at work. She had radio-frequency neurotomy for facet joint pathology and symptoms improved but she was left with backache. Prior to that fall she had no previous back problems."
3. The Medical Assessor referred to, relevantly, a CT of the applicant's lumbar spine dated 12 May 2020 which recorded the following findings: "Localised advanced spondylitic changes at L4/5 level with significant degeneration and vacuum phenomenon. The disc bulge is abutting the origin of the L5 nerves in the lateral recess without compression. Severe erosive arthropathy in the L4/5 and L5/S1 facet joints worse on the right side."
4. He also referred to an MRI of the applicant's lumbar spine dated 18 June 2020 which noted "possible compression of the right L5 nerve root due to disc and facet joint disease at L4/5". No investigations or scans taken before the 2020 injury was suffered were referred to by the Medical Assessor.
5. Of significance, the Medical Assessor did not refer to three items of evidence which had been produced to the Commission following the employer's successful application to admit late documents: 1. imaging from June 2019 taken "prior to her pre-existing injury on 2[7] June 2019", which indicated, "amongst other things, facet arthropathy, worse at L4/5 and moderate broad based disc protrusion at L4-5"; 2. imaging taken after the 2019 injury which "indicated significant facet joint arthritis at the L4/L5 level as well as L3 and L5/S1"; and 3. imaging following the 2020 injury, which "indicated a disc bulge abutting the origin of the L5 nerves in the lateral recess without compression." (the additional evidence)
6. Under the heading, "SUMMARY", the Medical Assessor said: "As a result of the fall, Ms Sawaneh sustained injuries to the left knee and back, aggravating pre-existing asymptomatic patellofemoral arthritis and lumbar spondylosis and sustained a lumbar disc lesion. She had conservative treatment for the left knee and decompression surgery for the lumbar spine."
7. Under the heading, "REASONS FOR ASSESSMENT", he said: "The claimant had a one-level decompression of the lumbar spine. She falls into DRE Lumbar Category III … ADLs are affected but she is independent in self-care regarding her back injury. I assess 12% whole person impairment. There is no evidence of radiculopathy. There is evidence of pre-existing lumbar spondylosis. In my opinion the pre-existing condition is a component of the current impairment. Being guided by the history of no previous injuries apart from an injury a year earlier at the same place of employment and the radiological findings which show facet arthropathy which was present prior to the 2019 incident when she had radiofrequency neurotomy, I have deducted one-tenth applying the provision of section 323. This equates to 1.2% WPI. She therefore has 10.8% WPI as a result of the injury which rounds off to 11%." (Footnotes omitted.)
8. Under the heading, "DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY", the Medical Assessor wrote: "The worker has evidence of underlying degenerative disease of the lumbar spine and the left knee. In my opinion, persistent symptoms in the back and knee are the result of injury sustained at work and the underlying degenerative disease. I am of the opinion that the pre-existing degenerative disease is a component of the current impairment. I have deducted (1/10) as outlined in 10a applying the provisions of s323(2) as the extent of the deduction is difficult or costly to determine."

The employer's appeal to the Appeal Panel

1. On 6 April 2022, the employer appealed the Medical Assessor's assessment pursuant to s 327 of the Act on the grounds that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and that the medical assessment certificate contains a demonstrable error (s 327(3)(d)).
2. In support of its appeal, the employer referred to s 323(2) of the Act which stated that a deduction of 10% for previous injury is not appropriate if the assumption of 10% (the statutory assumption) "is at odds with the available evidence". It submitted that the additional evidence (which, as referred to above, was before the Medical Assessor but was not referred to by him) demonstrated that the applicant "suffered prior significant back problems as early as 2016".
3. The employer submitted as follows: "19. The appellant submits, when making his assessment under section 323, the MA [Medical Assessor] appeared to focus on the history of a prior incident having occurred at work and the reported symptomology of the worker prior to this incident. The appellant submits the MA has fallen into error in this respect as his assessment of impairment was to be confined solely to the subject incident sustained on 10 April 2020. The appellant submits that any impairment that may have arisen from an earlier injury at work should not be included in the current impairment assessment. 20. The referral to the MA required any impairment assessment based on a frank incident sustained on 10 April 2020. The appellant submits the MA has discounted and not included consideration of the impairment arising from an earlier injury on the basis it occurred at work. The appellant submits this assumption was not available to the MA given the basis of the referral to him. The appellant submits the MA failed to consider how the previous injury contributed to the current injury."
4. The applicant filed a notice of opposition to the appeal and submitted that the correct criteria were applied and that there was no demonstrable error. In the submissions in support of the notice, Mr Jobson, who was then acting for the applicant, submitted that all the Medical Assessor had done was to comply with the substance of what Schmidt J said in Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole) 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."
5. Mr Jobson addressed the additional evidence in his written submissions as follows: "29. Notably, the respondent submits the imaging reports in this matter, including the two radiology reports referred to by the appellant in paragraph 16 of their submissions, is not of evidence of a high enough threshold such that it can be considered 'at odds' with the section 323 assumption …. 30. Similarly, the respondent submits similarly the clinical notes of My Health Rhodes Medical Centre outlining the worker's complaints of lumbar spine, on which the appellant relies on in paragraph 18 of their submissions, is not evidence that can be considered 'at odds' with the section 323 assumption …."
6. On 23 May 2022, a delegate of the Commission referred the appeal to the Appeal Panel.

The Appeal Panel's reasons and certificate

1. On 23 August 2022, the Appeal Panel allowed the appeal and issued a new certificate assessing the applicant's WPI at 11%, which included a WPI of 6% for her lumbar spine (12% impairment reduced by 50% for pre-existing condition pursuant to s 323 of the Act). Evidently, the Appeal Panel did not apply the assumption in s 323(2) of the Act, but found that a greater deduction of 50% for previous injury was appropriate.
2. The Appeal Panel's reasons as to the deduction to be made for pre-existing injuries or conditions were as follows: "24. A s 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed. The MA deducted one-tenth for the reasons he gave above. The appellant complains on appeal that he has not deducted the proportion related to a previous injury in 2019 and instead has improperly taken this injury into account with the overall assessment of impairment as a result of the injury referred to him being 10 April 2020. In addition, the appellant complains on appeal that the MA has failed to take proper account of the pre-existing condition or abnormality of the lumbar spine. 25. The Appeal Panel after a careful review of the evidence considers that the MA has erred. 26. The respondent worker suffered an injury to her back in 2019. She was referred for a CT scan of the lumbar spine on 20 June 2019. This investigation was not referred to by the MA. This investigation records a clinical history of 'lumbar radicular pain on the right.' The findings are reported as follows: 'Mainly facet arthropathy noted, worse at L4-5 but also affects L3-4 and L5-S1. There is also moderate broad based disc protrusion at L4-5, but no canal foraminal [(sic] narrowing or nerve impingement is seen. There is sacroiliac joint athropathy, worse on the left with cystic change.' 27. What this means is that the respondent worker had chronic underlying degenerative changes in her lumbar spine which were aggravated by the injury in 2019 (not the subject of the referral). 28. After the fall on the 10 April 2020, the respondent worker was referred for a MRI investigation which took place on 18 June 2020 and was reported 19 June 2020. The clinical history is recorded as 'pain radiating to under right side of heel.' The findings are recorded as follows: 'No fracture. No focal disc herniation. Localised advanced spondylitic changes at L4/5 level with significant degeneration and vacuum phenomenon. The disc bulge is abutting the origin of the L5 nerves in the lateral recess without compression. Severe erosive arthropathy in the L4/5 and L5/S1 facet joints worse on the right side.' 29. What this means is that the respondent worker had chronic underlying degenerative changes in her lumbar spine which were aggravated by the injury in 2019 (not the subject of the referral) and again on 10 April 2020 (the subject of the referral). 30. The chronicity of the changes shown on the radiological investigations is consistent with the general practitioner's (GP) clinical record of 'history of intermittent back pain treated in the past' in the certificate of capacity issued by Dr Qidwai dated 26 October 2020. 31. After the injury on 10 April 2020 the respondent was not successfully able to return to work, symptoms persisted and she came to surgery at L4/L5. 32. The assessment of overall permanent impairment is DRE II (10% whole person impairment (WPI) plus 2% WPI for activities of daily living (ADLs)) based on the surgery and the overall level of permanent impairment is not the subject of complaint on appeal. 33. The contribution of the pre-existing condition, abnormality or injury to the overall level of permanent impairment must be taken into account. 34. On the available evidence, the pre-existing condition of the lumbar spine is able to be demonstrated by the CT investigation of 20 June 2019 and the MRI investigation of 18 June 2020. 35. The CT investigation of 20 June 2019 demonstrates facet arthropathy and disc protrusion at L4/5. 36. The MRI investigation of June 2020 demonstrates severe erosive arthropathy in the L4/S4 and L5/S1 facet joints worse on the right side. 37. The severe erosive arthropathy demonstrated in the L4/5 and L5/S1 facet joints does not result from injury on 10 April 2020 but is a pre-existing condition which was aggravated by the injury. The pre-existing condition demonstrated by the radiological investigations, the injury in 2019 and the injury in 2020 have all contributed to the need for surgery on which the assessment of permanent impairment is based. 38. Account must be taken of the contribution of the pre-existing injury (in 2019) and the preexisting condition and abnormality of the lumbar spine demonstrated on the radiological investigations to the level of permanent impairment assessed as a result of injury on 10 April 2020 (being the referred date of injury). The available evidence is at odds with a deduction of one-tenth. Rather, the available evidence supports a deduction of one-half."

The proceedings in the court below

1. On 15 November 2022, the applicant filed a summons in the Common Law Division of the Supreme Court seeking relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). The summons was amended on 5 July 2023. On 15 December 2023, the primary judge gave reasons and made orders dismissing the amended summons: Sawaneh v Flintwood Disability Services Ltd [2023] NSWSC 1589. The applicant seeks leave to appeal against this dismissal by amended summons filed on 5 July 2024.

The grounds of appeal

1. The proposed grounds of appeal, if leave is granted, are: "1 The primary judge erred in failing to find that the second defendant had engaged in conduct constituting either jurisdictional error, or in the alternative, a constructive failure to exercise jurisdiction by not meaningfully engaging with the appellant's arguments in opposition to the appeal to the medical appeal panel made in writing. 2 His Honour erred in failing to make a finding that the appellant had been denied procedural fairness by inadequate reasoning of the medical appeal panel when determining that her whole person impairment should be reduced by 50%. 3 His Honour erred in failing to find that the second respondent committed a jurisdictional error by forming an opinion as to whole person impairment by concluding that the appellant had suffered aggravations from two unreferred injuries being opinions as to liability that were beyond the jurisdiction of the medical appeal panel."

Whether leave to appeal ought be granted

1. In order to obtain leave to appeal, the applicant must persuade the Court that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable: see the authorities referred to in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (Bell P and Simpson AJA).
2. For the reasons given below, I am not satisfied that the applicant has demonstrated a reasonably clear injustice going beyond something which is merely arguable. While Mr Baran, who appeared with Mr Bui on behalf of the applicant, submitted that the WPI certified by the Medical Assessor of 16% would have entitled the applicant to damages for non-economic loss (as it exceeded the threshold of 15%), whereas the Appeal Panel certified 11%, which meant that she did not meet the threshold in s 151H of the 1987 Act, this does not amount to an injustice if there was no error by the Appeal Panel.
3. Mr Baran submitted that the construction of s 323 of the Act was a matter of public importance which regularly arose in assessments of WPI and that its true construction ought be clarified by this Court. Mr Mitchell, who appeared with Mr Hart on behalf of the employer, formally opposed leave but did not want to be heard against the proposition that the quantum of a deduction under s 323 of the Act was a question that regularly arose in medical assessments conducted under the Act and was a question of public importance. I accept Mr Mitchell's submission that no issue of principle arises on the appeal. It is only on the basis of conceded public importance and the employer's muted opposition to leave that I am persuaded that leave ought be granted since, for the reasons given below, I consider none of the grounds has merit.

Ground 1: alleged error in failing to find jurisdictional error because the Appeal Panel did not meaningfully engage with the applicant's written submissions

1. It is plain that, of the three integers set out in s 323 of the Act, and referred to in Cole - the level of permanent impairment; whether there was a pre-existing injury or disease; and, if so, the amount of the deduction - only the third was in issue. The question for the Appeal Panel was whether the Medical Assessor was correct to find that the statutory assumption applied or whether, as the employer contended, it was at odds with the additional evidence.
2. When pressed to identify which of the applicant's submissions the Appeal Panel had not addressed, Mr Baran submitted that it had not addressed paragraphs 29 and 30 of the applicant's notice of opposition (extracted above), in which the applicant had asserted that the statutory assumption was not at odds with the evidence. Mr Baran also submitted in support of this ground that the Appeal Panel's finding at paragraph 37 of its reasons was impermissible. This submission will be considered with ground 3 as it overlaps with that ground.
3. I reject Mr Baran's submission that the Appeal Panel did not address the applicant's submission that the assumption was not at odds with the evidence. It is plain from the Appeal Panel's reasons that it rejected the Medical Assessor's view that the statutory assumption applied and did so on the basis that the assumption was at odds with the additional evidence. The Appeal Panel's reasons addressed the very matters which the employer had raised in support of its appeal and which the applicant had addressed in her own submissions and noted that the additional evidence had not been referred to by the Medical Assessor.
4. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot), the Court (French CJ, Crennan, Bell, Gageler and Keane JJ) said at [47]: "The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise." (Footnotes omitted.)
5. Having regard to its function, which was analogous to the Medical Panel in Wingfoot, it was not necessary for the Appeal Panel to set out the applicant's submission in terms in its reasons since it sufficiently addressed the substance of her submission in paragraphs 26-30 (set out above). Its reasons were adequate to explain its preference for a reduction of 50% over the 10% statutory assumption: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121] (Basten JA).
6. Accordingly, there was no error in the primary judge's finding that the Appeal Panel had sufficiently engaged with the applicant's submissions.
7. Ground 1 has not been made out.

Ground 2: alleged error in failing to find the applicant was denied procedural fairness as a consequence of the inadequate reasoning of the Appeal Panel

1. Mr Baran submitted that the Appeal Panel's reasons referred to the employer's submissions but not to the submissions which were made on behalf of the applicant and that, accordingly, there had been a denial of procedural fairness.
2. For the reasons given in respect of ground 1, ground 2 has not been made out. The Appeal Panel did not need to reproduce the submissions in terms as long as its reasons set out "the actual path of reasoning by which the [Appeal Panel] arrived at the opinion the [Appeal Panel] actually formed for itself": Wingfoot at [48]. Its reasons were sufficient to address the applicant's submissions and explain why it had rejected them. The applicant has not demonstrated that the primary judge was in error in rejecting this challenge to the Appeal Panel's certificate.

Ground 3: alleged error in failing to find jurisdictional error by the Appeal Panel forming an opinion as to WPI on the basis of matters which had not been referred to it

1. In support of this ground, Mr Baran relied on the following extracts from the Appeal Panel's reasons: "27 What this means is that the respondent worker had chronic underlying degenerative changes in her lumbar spine which were aggravated by the injury in 2019 (not the subject of the referral). … 29. What this means is that the respondent worker had chronic underlying degenerative changes in her lumbar spine which were aggravated by the injury in 2019 (not the subject of the referral) and again on 10 April 2020 (the subject of the referral)." (Emphasis added.)
2. He also relied on paragraph 37 of the Appeal Panel's reasons: "The severe erosive arthropathy demonstrated in the L4/5 and L5/S1 facet joints does not result from injury on 10 April 2020 but is a pre-existing condition which was aggravated by the injury. The pre-existing condition demonstrated by the radiological investigations, the injury in 2019 and the injury in 2020 have all contributed to the need for surgery on which the assessment of permanent impairment is based."
3. Mr Baran submitted that the Appeal Panel's reasons at paragraphs 29 and 37 "incorporate clear unequivocal findings of an aggravation of a pre-existing condition in 2019 and 2020" which was "not the appeal panel's task".
4. He submitted (and it was common ground) that the only injury which was referred for assessment of WPI was the 2020 injury. However, he submitted that there was an important distinction between the aggravation of the underlying degenerative disease caused by the 2019 injury (which had not been referred) and the aggravation of the underlying degenerative disease by the 2020 injury (which fell within the scope of the referral). He submitted that, consistently with s 323, the Appeal Panel must have regard to the pre-existing injury (the 2019 injury) but cannot have regard to whether that pre-existing injury aggravated a pre-existing condition as that would attract the operation of s 16 of the 1987 Act which vests jurisdiction to make such a determination in the Commission, not in the Appeal Panel. He submitted that the Appeal Panel was wrong to find that the 2019 injury had aggravated the pre-existing degenerative disease in the applicant's lumbar spine because it had not been referred and that it was therefore not within the jurisdiction of the Appeal Panel to consider it. Mr Baran accepted that the consequences of his submission sounded "rigid and robotic" but asserted that "that is the way the scheme works".
5. The principal difficulty with this submission is that it is contradicted by the express words of s 323 of the Act, which mandates that there is to be a deduction from the degree of permanent impairment resulting from an injury (being the injury which has been referred) for any proportion of the impairment that is due to: 1. any previous injury, whether compensable or not (which must include the 2019 injury in the present case); and 2. any pre-existing condition (which must include the applicant's degenerative back condition).
6. Once the Appeal Panel had found error in the Medical Assessor's certificate, it was entitled to revoke the certificate, to conduct its own review and issue a fresh certificate of its assessment: s 328 of the Act. In order for the Appeal Panel to perform the task mandated by s 323, it was required to assess what proportion of the impairment of 12% (for the lumbar spine) was due to either the 2019 injury or the degenerative back condition and deduct this total from the 12%. It was germane to this task for the Appeal Panel to opine that the 2019 injury had aggravated the degenerative back condition, the effects of both of which needed to be deducted. I reject Mr Baran's submission that this involved the Appeal Panel going beyond its jurisdiction to assess the degree of permanent impairment in respect of the 2020 injury: s 323 required this task to be done.
7. I reject Mr Baran's submission that because all the Medical Assessor was doing was following what was outlined in Cole, the Appeal Panel was wrong to find error in the Medical Assessor's assessment. The question - whether the statutory assumption in s 323(3) of the Act applied - was one which fell within the expertise of the Medical Assessor and the Appeal Panel. The question whether the Medical Assessor was in error was one for the Appeal Panel. The primary judge's jurisdiction pursuant to s 69 of the Supreme Court Act and this Court's jurisdiction on appeal do not entitle the applicant to challenge the Appeal Panel's finding that the statutory assumption had been displaced by the evidence which did permit it to quantify the deduction at 50% because that question fell squarely within its expertise and did not fall within the ambit of an error for which s 69 of the Supreme Court Act provides a remedy. The applicant has not raised any ground which impugns the legality of the certificate of the Appeal Panel and has not established any error in the primary judge's conclusion to dismiss the summons.
8. For these reasons, I reject ground 3.

Proposed orders

1. For the reasons given above, I propose the following orders: 1. Grant leave to appeal. 2. Direct the applicant to file and serve a notice of appeal in the form annexed to the summons seeking leave to appeal filed on 14 March 2024 within 7 days hereof. 3. Dismiss the appeal. 4. Order the applicant to pay the first respondent's costs of the appeal.
2. PRICE AJA: I agree with Adamson JA and the additional reasons of Leeming JA.

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