Southwell v Qantas Airways Limited (NSWSC 2023)

Link to Decision

Link to Video

Key Takeaways

The NSWSC has ruled that the Medical Assessment Certificate (MAC) issued by a Medical Appeal Panel (MAP) failed to apply the applicable SIRA Guidelines correctly and therefore, the MAC was not made in accordance with law.

Brief Facts

The worker sought relief in the NSWSC by way of an order setting aside the decision of the Personal Injury Commission’s (PIC) MAP, made on 12 April 2022 (the Decision) and the Certificate issued by the MAP that the worker suffered 11% WPI.

By way of background, the worker sustained an injury to the lumbar spine on 18 August 2017. The Medical Assessor (MA), Dr Kuru, issued a MAC on 22 November 2021 and assessed 15% WPI which included 3% attributable to a finding of radiculopathy.

On the basis of the findings on examination, the AMS applied cl 4.27 of the Guidelines and considered that a finding of radiculopathy was warranted and allowed 3% WPI accordingly. The MA said:

“According to SIRA guidelines, page 27, paragraph 4.27, Mr Southwell meets the criteria for radiculopathy in that he has muscle weakness that is anatomically located to an appropriate spinal nerve root distribution (weakness of EHL [viz., extensor hallucis longus]) and findings consistent on imaging study consistent with his clinical signs”.

The employer appealed against the assessment which was referred to the MAP.

When considering whether a finding of radiculopathy was appropriate, the MAP extracted the MA’s findings on examination and when addressing cl 4.27 of the Guidelines, came to the opposite conclusion to that arrived at by the MA. The MAP said:

“… the criteria for radiculopathy in [4.27] of the guidelines have not been satisfied. If the Respondent [worker] experienced sensory loss at L5, had wasting and demonstrated asymmetry of reflexes, there could have been a finding of radiculopathy. However, such is not the case. On the finding of the medical assessor, the Panel is of the view that, whilst there were signs of radiculopathy, there are insufficient findings on examination to determine that radiculopathy existed. Accordingly, the Panel finds error in the assessment of the Medical Assessor of 3% for persistence of symptoms and radiculopathy.”

The worker appealed the MAP’s decision. In the NSWSC, Adamson J stated that it was common ground that the MAP failed to apply the Guidelines correctly. Clause 4.27 of the Guidelines requires a minimum of two of the criteria to be satisfied, only one of which needs to be a major criterion. The clinical findings of the MA (which were accepted by the MAP) were sufficient to satisfy the criteria for radiculopathy because the MA found, first, ’muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution’ (being a major criterion) and, secondly, ‘findings consistent on imaging study consistent with his clinical signs’ (being a non-major criterion).

Judgment

Adamson J stated that non-compliance with cl 4.27 of the Guidelines amounted to an error of law and determined that the relief sought (referral back to the President of the PIC) was appropriate and warranted. The Court set aside the Decision and remitted the matter to the PIC for determination by a differently constituted MAP.

Implications

In this particular matter, the difference in assessments (11% and 15% WPI) is obviously critical for the purpose of a threshold dispute, and therefore a thorough review of the Guidelines and the findings on examination were critical, and have resulted in a referral for consideration by a different MAP.