Sawaneh v Flintwood Disability Services Ltd [2024] NSWCA 178

Relevant Legislation

Section 323 of the Workplace Injury Management and Workers Compensation Act 1998 provides as follows:

(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 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.

(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.

Background

On 10 April 2020, the Applicant slipped on a wet floor while working for the Respondent, injuring her left knee and lumbar spine (“the 2020 injury”). Proceedings were commenced in the Personal Injury Commission and the Applicant was referred to a Medical Assessor (MA) for a binding assessment of impairment in relation to the 2020 injury.

The MA found that a 10% deduction pursuant to Section 323 was applicable in this instance due to a previous injury to the lower back in 2019 (“the 2019 injury”)

The Respondent appealed the Medical Assessment Certificate, arguing that the MA ought to have applied a greater deduction. In making that argument, the Respondent referred to medical evidence which was before the MA, but not referred to by him (namely imaging in relation to the 2019 injury and the Claimant’s GP’s clinical notes). It was argued that this evidence demonstrated that the Applicant suffered significant back problems prior to the 2020 injury.

The Appeal was allowed and the Medical Appeal Panel applied a 50% deduction for the previous injury.

The Applicant sought leave to Appeal for judicial review of the primary judge’s decision.

Issues

The Applicant was granted leave to appeal the following grounds:

1. Whether there was any jurisdictional error by not meaningfully engaging with the Applicant’s submissions
2. Whether there was a denial of procedural fairness resulting from inadequate reasons.
3. Whether there was any jurisdictional error on the part of the Appeal Panel by forming an opinion as to WPI on the basis of matters which had not been referred.

Held

Ground 1:

The Court held that the Appeal Panel reasoning was adequate to explain its preference for a reduction of 50% over the 10% statutory presumption, noting that the MA had not referred to the additional medical evidence. It was noted that it was not necessary for the Appeal Panel to set out the Applicant’s submissions, as those submissions were sufficiently addressed.

Ground 2:

The Court found that the Appeal Panel’s had set out the actual path of reasoning by which it arrived at its opinion, citing the decision of Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.

Ground 3:

The Court held that the Appeal Panel was entitled to revoke the Medical Assessment Certificate once an error had been found. The Appeal Panel was able to conduct its own review, issue a fresh Certificate, and make deductions with respect to Section 323.

Implications

The NSW Court of Appeal has confirmed that deductions applied within Section 323 of the 1998 Act remain a discretionary matter for the Medical Assessor, who must take into account the whole of the evidence with regards to any pre-existing conditions or injuries.

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