Southwell v Qantas Airways Limited [2023] NSWSC 27

Southwell v Qantas Airways Limited [2023] NSWSC 27

The Appeal Panel failed to apply cl 4.27 of the Guidelines in terms. The AMS findings, which the Appeal Panel accepted, established muscle weakness anatomically localised to an appropriate spinal nerve root distribution, a major criterion, and imaging findings consistent with the clinical signs, a non-major criterion. Those findings were sufficient to satisfy the Guideline criteria for radiculopathy. Non-compliance with cl 4.27, which defines radiculopathy with precision, amounted to an error of law, so the Decision and Certificate were not made in accordance with law and should be set aside.

Jurisdiction
Australia
Judgment Date
01 February 2023
Procedural Posture
Common Law; Workers Compensation Challenge to an Appeal Panel Medical Assessment Decision / On the Papers; Principal Judgment
Outcome
Decision and certificate set aside; matter remitted to the second defendant for determination by a differently constituted Appeal Panel; each party to pay own costs.
Legal Topics
['permanent Impairment' 'whole Person Impairment' 'workers Compensation Guidelines' 'radiculopathy' 'medical Assessment Appeal' 'error of Law' 'remittal to Differently Constituted Appeal Panel']
['workers Compensation' 'administrative Law'] ['permanent Impairment' 'whole Person Impairment' 'workers Compensation Guidelines' 'radiculopathy' 'medical Assessment Appeal' 'error of Law' 'remittal to Differently Constituted Appeal Panel']

Case Brief

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Procedural Posture

Common Law; Workers Compensation Challenge to an Appeal Panel Medical Assessment Decision / On the Papers; Principal Judgment

Legal Issues

  1. 1 ['Whether the Appeal Panel erred in applying cl 4.27 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment when determining whether radiculopathy was present.' 'Whether the Decision and Certificate should be set aside and the matter remitted to the President of the Personal Injury Commission for determination by a differently constituted Appeal Panel.']

Ratio Decidendi

The Appeal Panel failed to apply cl 4.27 of the Guidelines in terms. The AMS findings, which the Appeal Panel accepted, established muscle weakness anatomically localised to an appropriate spinal nerve root distribution, a major criterion, and imaging findings consistent with the clinical signs, a non-major criterion. Those findings were sufficient to satisfy the Guideline criteria for radiculopathy. Non-compliance with cl 4.27, which defines radiculopathy with precision, amounted to an error of law, so the Decision and Certificate were not made in accordance with law and should be set aside.

Court Disposition

Decision and certificate set aside; matter remitted to the second defendant for determination by a differently constituted Appeal Panel; each party to pay own costs.

Orders

  • ['Set aside the decision of the third defendant made on 12 April 2022 and the certificate issued on that day.' 'Remit the matter to the second defendant for determination by a differently constituted Appeal Panel.' 'Order each party to pay his, her, its or their (as the case may be), own costs.']