Woolstar Pty Ltd v Lando

The assessment by the approved medical specialist

1. The medical assessment was conducted on 31 July 2020 by Dr Greg McGroder, an occupational physician. Dr McGroder identified the right wrist, right ankle and hip and left hip as the body parts referred for assessment. He recorded the history of Ms Lando's symptoms and radiological investigations undertaken between June 2015 and November 2018. An early MRI (June 2015) was recorded as demonstrating significant right hip osteoarthritis and other injuries. A 2017 X-ray was recorded as showing severe arthritic changes in the right hip and mild to moderate change in the left hip. Subsequent investigations continued to show early degenerative changes in the left hip.
2. Dr McGroder noted: "7. Summary of injuries and diagnoses: In a fall at work on 27 May 2015 Mrs Lando injured her right hip which involved an acute injury, along with aggravation of some underlying arthritic change in the joint. She subsequently underwent a total hip replacement. She developed problems with the controlateral left hip secondary to this injury which was deemed to be a result of favouring the right. Her current condition would be a result of aggravation of underlying arthritic change along with some mechanical pain."
3. Dr McGroder referred to a number of medical reports, including one of Dr J Bodel, on whose report Ms Lando had relied, and said: "Dr Bodel did not make a deduction for a pre-existing condition for the same reasons as myself."
4. Dr McGroder recorded that, prior to the June 2015 incident, Ms Lando had been pain free and without symptoms. Specifically with respect to the question of deduction under s 323 of the WIM Act, Dr McGroder said that Ms Lando's hip conditions (plural): "… are a result of constitutional arthritis being aggravated in the fall that occurred on 27 May 2015. Ms Lando has, however, been employed by Woolworths for 25 years prior to this and there is no suggestion that a pre-existing condition existed prior to that. Based on recent legal decisions, there is thus no justification for a deduction in this situation."
5. He referred to, and in part disagreed with, a report of Dr Powell, orthopaedic surgeon, who, Dr McGroder recorded, considered that Ms Lando's condition was not work related.
6. Dr McGroder accordingly declined to make any deduction under s 323 of the WIM Act from the assessment of permanent impairment.
7. Dr McGroder issued a medical assessment certificate that certified whole person impairment at 22 percent (of which 16 percent was attributable to the right hip, 4 percent was attributable to the left hip and 4% to the right wrist) with no deductions under s 323 of the WIM Act for pre-existing injury, condition or abnormality. (The mathematics of the certificate are something of a mystery, but do not affect the questions for present determination.)
8. Pursuant to s 327 of the WIM Act Woolworths applied to the Registrar for an appeal against the medical assessment, relying on grounds (c) and (d) of subs(3) (that is, that the assessment was made on the basis of incorrect criteria, or that the medical assessment certificate contained a demonstrable error). The Registrar was satisfied that one ground of appeal (ground (d)) was made out and referred the appeal to an Appeal Panel constituted by an Arbitrator and two approved medical specialists (the third named defendant). Both parties provided written submissions to the Appeal Panel. Woolworths contended that three errors could be seen in Dr McGroder's assessment. The first was a calculation error in relation to the application of the Guidelines to the right wrist injury (an error that was conceded). The second was the failure of Dr McGroder to make a deduction, under s 323(1) of the WIM Act, from the assessment of the impairment to Ms Lando's right hip. The third asserted error, consequential upon the first and second, lay in the ultimate assessment of 22% impairment.
9. The written submissions provided on behalf of Woolworths (under that name) included: "9. Both the AMS [approved medical specialist] and Dr Bodel have decided [Ms Lando's] impairment is in part attributable to the nature and conditions of her employment from 1995 however: a The claim was pleaded as a fall on 27 May 2015 and there was no nature and conditions (disease) pleading b No finding was made that there was a nature and conditions component to the injury … c The AMS referral was for a single date of injury, namely 27 May 2015 … 10. The AMS has therefore fallen into error in considering the effects of the nature of employment or anything else that occurred prior to the fall on 27 May 2015. He was required to consider the degree of impairment in existence immediately prior to the fall and he failed to do so. 11. [Woolworths] submits that a correct analysis of s 323 in this case warrants careful consideration of the MRI scan of 18 June 2015 … this scan, conducted less than a month after the fall in question, records 'significant right hip osteoarthritis' with 'full thickness chondral loss' and a 'degenerative tear of the superior labram.' 12. In [Woolworths'] submission, the above-mentioned scan, when considered in conjunction with the other medical evidence, warrants a s 323, deduction greater than 'the standard 1/10th, but in the very least, a 1/10th deduction should be applied." (underlining in original) The reference in [12] to a 10% deduction is to be taken as a reference to s 323(2) of the WCM Act, although there was nothing to suggest (as is required for the application of the assumption so provided) that the assessment of the contribution of the pre-existing condition to the degree of permanent impairment would be difficult or costly to determine.
10. It was not correct to say that Dr Bodel and Dr McGroder had decided that Ms Lando's impairment was in part attributable to the "nature and conditions of her employment". Dr Bodel's full report was not in the materials provided to this Court, but is summarised by Dr McGroder in his reasons. There is nothing in that summary, and nothing in Dr McGroder's reasons for his assessment, that signifies any such decision.
11. To the contrary, in the first sentence of the passage extracted above at [33] (under the heading "Summary of injuries and diagnoses) Dr McGroder attributed the aggravation of the underlying arthritic changes in Ms Lando's right hip to the fall at work on 27 May 2015. He made no mention of any component of the condition being attributable to the nature and conditions of Ms Lando's employment from 1995 (or any other time).
12. Ms Lando's legal representative (Mr Morgan) responded to Woolworths' submissions by pointing to Dr Powell's report. The submissions went on: "15. The error the respondent [sic - appellant] employer has fallen into is its failure to appreciate in the [ARD], the injury identified is in fact a disease injury with a deemed date of injury of 27 May 2015. … 18. The allegation was not that the constitutional degenerative condition was caused by [Ms Lando's] work but rather it was quiescent or asymptomatic but for the fall; the fall causing the aggravation of the disease is the injury that occurred in the course of [Ms Lando's] employment with [Woolworths]."

The Appeal Panel's decision

1. Ms Lando was not further examined for the purposes of the appeal. The Appeal Panel relied on the evidentiary material that had been before Dr McGroder. The Appeal Panel faithfully recorded the submissions made by the parties and the findings and conclusions of Dr McGroder. It reviewed the various medical reports that had been placed before Dr McGroder. The Appeal Panel appears to have placed a different interpretation to Dr McGroder on Dr Powell's report. It recorded that Dr Powell said that "the incident" (of 27 May 2015): "…appeared to have resulted in aggravation of pre-existing degenerative change in [Ms Lando's] right hip and was the main contributing factor to that aggravation."
2. The Appeal Panel's dispositive reasons may be found in three paragraphs: "50. When the medical evidence, the pleading and the transcript are read together it appears there is no basis for the stance taken by Woolworths on the appeal. There was no evidence suggesting that a deduction under s 323 was warranted in respect of the disease injury to Ms Lando's right hip. 51. There is no evidence that Ms Lando suffered degenerative changes in her right hip before the commencement of her employment. Mr Morgan's submissions with respect to the application of s 323 to a disease injury are correct and is [sic] supported by the authorities he relied on and others including Cullen v Woodbrae Holdings Pty Ltd [[2015] NSWSC 1416] in which Beech-Jones J said that it was an error in a disease case to consider a pre-existing condition as one that existed outside the course of employment. In such a case a pre-existing condition must be one that existed prior to the commencement of employment. The existence of constitutional pathology does not automatically lead to the conclusion that there was a pre-existing condition. 52. [Dr McGroder] did not err failing to make a deduction from s 323 from the assessment of Ms Lando's right hip." (italics in original)
3. After correcting the calculation error in the medical assessment certificate in relation to Ms Lando's right wrist injury, the Appeal Panel otherwise confirmed the medical assessment by Dr McGroder and, on 26 October 2020, issued a fresh medical assessment certificate. That certificate certified 21 percent whole person impairment in lieu of the 22 percent certified by Dr McGroder.
4. It is that decision that is the subject of the present appeal for judicial review.

The application for judicial review

1. Woolstar seeks:

• an order in the nature of certiorari, quashing the decision of the Appeal Panel; and
• an order in the nature of mandamus, directing the Commission to constitute an Appeal Panel to determine Ms Lando's whole person impairment according to law; or alternatively,
• an order in the nature of mandamus directing the Appeal Panel to determine Ms Lando's whole person impairment according to law.

1. The summons states the grounds for review as follows: "1. The [Appeal Panel] was ultra vires in that it purported to determine a liability issue between [Woolworths] and [Ms Lando], and failed to make a decision in conformity with the findings [of] an Arbitrator of the [Commission] (namely an oral decision of Arbitrator Sweeney on 6 May 2020). 2. The [Appeal Panel] took into account an irrelevant consideration (namely that the injury suffered by [Ms Lando] was a disease injury); 3. The [Appeal Panel] failed to take into account a relevant consideration (namely that the said injury was a frank injury)".
2. At the outset of the hearing an evidentiary issue arose. Counsel for Woolstar sought to read an affidavit sworn by Woolstar's solicitor, Mr David Hughes, on 18 March 2021. Mr Hughes had been present at the arbitration (which took place by teleconference) on 1 May 2020. Apparently no transcript is available of what took place in the teleconference and Mr Hughes' proposed evidence was his account of what had transpired, including some observations he attributed to the Arbitrator concerning whether the injury in respect of which Ms Lando claimed compensation was "a frank injury" or a "disease injury".
3. Objection, on a number of bases, was taken on behalf of Ms Lando to the admission of the affidavit evidence. I deferred ruling on the question.
4. I am now satisfied that the proposed evidence is not admissible. Remarks attributed to the Arbitrator during the course of a teleconference cannot have any bearing on the issues for present determination which are whether the Appeal Panel acted in excess of its jurisdiction or otherwise committed error of law on the face of the record. Observations made by an Arbitrator during the course of discussion cannot be taken to represent ultimate findings or conclusions. Much of Mr Hughes' proposed evidence is, as was pointed out by senior counsel for Ms Lando, not from recollection but from reconstruction. Finally, the decision in question is that of the Appeal Panel, although, as will be seen, the Arbitrator's decision is involved in Woolstar's application.
5. I decline to have regard to the proposed affidavit evidence of Mr Hughes.
6. Two things should be emphasised at the outset. First, the decision under review is that of the Appeal Panel. The decisions of the Arbitrator and the approved medical specialist are not the subject of review (although they are a necessary part of the background). Second, the nub of Woolstar's complaint is the decision to decline to make a deduction, under s 323 of the WIM Act, from the assessment of Ms Lando's permanent impairment attributable to the condition of her right hip by reason of a pre-existing condition.
7. Turning then to the pleaded grounds: two parts to ground 1 can be perceived - that the Appeal Panel exceeded its jurisdiction by: 1. determining a "liability issue" outside the functions conferred on it by s 322(1) and s 327 of the WIM Act; and 2. departing from the findings of the Arbitrator.
8. The submissions made in support of Ground 1 were elusive, particularly so as to whether the ground upon which reliance was placed was jurisdictional error or error of law on the face of the record. The written submissions were brief to the point of taciturnity. Relevantly, they were: "28 The scope of the [Appeal Panel's] authority … is clearly defined … the [Appeal Panel] is not to determine the threshold issue of liability and nor is the [Appeal Panel] otherwise permitted to make a decision in conflict with the findings of an Arbitrator of the [Commission]. … 30 In the current matter, by seeking to decide a liability issue and failing to adhere to the Arbitrator's findings (that is, that [Ms Lando] suffered a frank injury) the [Appeal Panel]'s thereby exceeded its authority. The [Appeal Panel] decision is consequently impugned. 31 Further, the [Appeal Panel]'s decision also offends both s 65 of the [WC Act] and s 322 of the [WIM Act] both of which require that impairment from an incident is to be assessed together. By not making a decision for pre-existing pathology, the [Appeal Panel] has, in effect, made a liability finding that the underlying disease process (which was not the subject of the Arbitrator's decision) was work derived and compensable."
9. The only indication given as to the identification of the "liability issue" referred to in the formulation of Ground 1 and again in par 30 of the submissions, is that contained in the second sentence of par 31. A finding that Ms Lando's condition was "work derived" is not a "liability finding" - such a finding, if made, would clearly lie within s 319 (a) as a "medical dispute", concerning the aetiology of the condition, and within the realm of the medical assessment regime. The Appeal Panel clearly accepted the weight of medical opinion (including that of Dr Powell) that it was the incident of 27 May 2015 that triggered the aggravation of the osteoarthritis already present. Moreover, attribution of the cause of permanent impairment is a necessary part of the assessment of the degree of permanent impairment suffered "as a result of an injury" (s 319(c)).
10. The Appeal Panel did not exceed its jurisdiction by making a "liability finding". Nor did it exceed its jurisdiction by departing from the findings of the Arbitrator. To understand that contention, it is necessary to turn to the oral submissions.
11. The grounds stated in the summons appear to raise jurisdictional error as the basis for Woolstar's claim. That that is so is supported by the transcript of the submissions made early in the hearing of the application, in which counsel is recorded as saying: "But, [Woolstar's] primary submission in this case is that the referral to the [approved medical specialist] and therefore the jurisdiction of both [the approved medical specialist] … and the medical appeal panel is clear, and that it referred a certain type of injury, namely an injury occurring on a particular date, as opposed to an injury occurring over time with a deemed date. That is, in my submission, clear on the face of the document, but the alternative submission which is made is that, should there be any doubt as to what those jurisdictional matters are, that is to say, the extent of the jurisdiction of both the [approved medical specialist] and the medical appeal panel, then to resolve any dispute in that respect, the Court would need to look at what occurred previously in order to understand what the jurisdiction of both the [approved medical specialist] and the medical appeal panel were. … ."
12. Almost immediately thereafter, counsel is recorded as saying: "… but, the primary way in which I wish to put the matter forward, is that it is error of law on the face of the record … ." No error of law on the face of the record was identified.
13. As I understand Woolstar's jurisdictional error argument, it is that what was found by the Arbitrator and referred by the Registrar's delegate to the approved medical specialist was, and was only, a "frank injury". That, so the argument went, was the foundation for jurisdiction of the approved medical specialist and therefore the Appeal Panel, and, in approaching its task on the basis that Ms Lando suffered "a disease injury", the Appeal Panel went beyond the findings of the Arbitrator.
14. The argument is founded on a false premise. It is not correct to say that the Arbitrator found, and found only, "frank injury". What the Arbitrator found (as recorded in the certificate of determination) was that Ms Lando suffered "injury" to (inter alia) her right hip in the fall of 27 May 2015. "Injury", as set out above, can be either "frank injury" or "disease injury". I see nothing in the legislation that excludes a single incident giving rise to both a "frank injury" and a subsequent "disease injury". That, indeed, is precisely what was found to have happened in this case. The "frank injury" suffered on 27 May 2015 resulted in "disease injury" within s 4(b)(ii) of the WC Act.
15. The next step in Woolstar's argument is that what was referred for medical assessment was, and was only, the "frank injury" said to have been found by the Arbitrator. That, too, can plainly be seen to be incorrect. What was referred for medical assessment is clearly spelled out in the Amended Referral - four questions, all relating to the assessment of permanent impairment resulting from the injury suffered in the fall. There was no confinement of the questions to permanent impairment resulting from the "frank injury" as distinct from a "disease". There is, in fact, no such distinction. The medical evidence accepted by the Appeal Panel established that the aggravation of the pre-existing but asymptomatic disease resulted from the "frank injury".
16. The issues that were before the Appeal Panel, and with which it dealt, were the same as those that were before the approved medical specialist: (i) the degree of permanent impairment resulting from the injury suffered on 27 May 2015; (ii) whether any proportion of that impairment was due to any previous injury or pre-existing condition or abnormality and, if so, the extent of that proportion; (iii) whether the impairment was permanent; and (iv) whether the degree of permanent impairment was fully ascertainable. Given the manner in which the appeal was presented, the salient issue was the second - the degree, if any, to which the assessed degree of permanent impairment was attributable to a pre-existing condition.
17. Woolworths presented its case to the Appeal Panel on the basis that the identified error in the reasoning of Dr McGroder was to approach the questions as though Ms Lando's claim was that her condition was attributable to the nature and conditions of her work. That was never Ms Lando's case, and it is not how it was treated by Dr McGroder. The Appeal Panel was not misled by the mischaracterisation of what Dr McGroder had found.
18. Woolworths also argued for a s 323(1) deduction by reason of the "significant right hip osteoarthritis" shown in the MRI of June 2015 (less than one month after the fall at work). That was an argument open to Woolworths to run, but one which was unsupported by the medical evidence, and one which both Dr McGroder and the Appeal Panel resolved adversely to Woolworths. The Appeal Panel therefore declined to make any deduction under s 323(1) of the WIM Act. In doing so the Appeal Panel (like Dr McGroder) took the starting point as the commencement of Ms Lando's employment in 1995. Having regard to the terms of s 323(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 pre-existing condition or abnormality") it may have been more accurate to take as the starting point 27 May 2015, the date on which Ms Lando suffered the incident that gave rise to her claims, and to consider whether any proportion of Ms Lando's permanent impairment was due to any condition that existed prior to that date. However, no such point was taken in these proceedings, and, in any event, the medical evidence would clearly suggest the same result. That evidence was that, prior to May 2015, whatever condition was revealed by the radiological evidence, it was asymptomatic. In these proceedings Woolstar sought to have drawn an inference that, from the June 2015 MRI, it could be inferred that the condition was in some way active at that time. Such an inference is beyond the authority conferred on this Court by s 69 of the Supreme Court Act (and is contrary to the evidence).
19. It has been accepted that: "… 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.": Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [46] per Beech-Jones J (as he then was); See also Cole v Wenaline Pty Ltd [2010] NSWSC 78 per Schmidt J. Schmidt J held that, to apply a deduction under s323, a conclusion that "the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment" is required. There was no such evidence in the present case.
20. Heavy emphasis was placed by Woolstar on the identification by the Appeal Panel on 27 May 2015 as the "deemed date of injury", thus (so it appeared to be argued) incorporating s 15 and/or s 16 of the WC Act. From this, the argument appeared to be that the Appeal Panel treated Ms Lando's "disease injury" as a "disease of gradual process" for the compensation of which Woolworths (or Woolstar) became wholly liable.
21. The first comment to make is that the Appeal Panel referred to a "deemed date of injury" only in recording the submissions made on Ms Lando's behalf. The "deemed date of injury" played no part in its reasoning. Second, it will be recalled that s 16 provides a mechanism for fixing a date on which, for the purposes of attribution to an employer or employers of liability for compensation, an injury that consists of aggravation, acceleration, exacerbation or deterioration is "deemed to have happened". Otherwise (and, in this case, having regard to Ms Lando's long term employment with Woolworths) the deeming provisions of s 15 and s 16 are of no relevance.
22. There was no jurisdictional error constituted by the Appeal Panel's failure "to make a decision in conformity with the findings of [the] Arbitrator".
23. No jurisdictional error has been established. Ground 1 must be rejected. Nor has any error of law on the face of the record been demonstrated.
24. Grounds 2 and 3 are, effectively, different versions of Ground 1. Each must also be rejected. Each proposes, erroneously, that the Appeal Panel was obliged to proceed on the basis that the only injury suffered by Ms Lando to her right hip in the fall was a "frank injury" or a "personal injury" within s 4(a) of the WCA. For the reasons given above, that is wrong.
25. The challenge to the findings of the Appeal Panel therefore fails. The summons must be dismissed.
26. The orders I make are: 1. Summons for judicial review dismissed; 2. The plaintiff to pay the costs of each defendant.

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