Aquilina v Transport for NSW - [2022] NSWSC 1310

Supreme Court

New South Wales

Medium Neutral Citation: Aquilina v Transport for NSW [2022] NSWSC 1310
Hearing dates: 7 July 2022
Date of orders: 7 July 2022
Decision date: 28 September 2022
Jurisdiction: Common Law
Before: Brereton JA
Decision:
(1) Quash the Medical Assessment Certificate issued by the second defendant on 10 December 2021 in Personal Injury Commission matter M1-007567/20.
(2) Direct that the second defendant issue a Medical Assessment Certificate certifying that the degree of permanent impairment resulting from the plaintiff’s injuries in the subject of Personal Injury Commission Matter M1-007567/20 is 15%.
(3) Order that the first defendant pay the plaintiff’s costs.

Catchwords:
WORKERS COMPENSATION – Medical assessment – Judicial review of decision by medical appeal panel – Where appeal panel accepted error alleged to have been made in medical assessment, but proceeded to uphold ultimate outcome using alternative reasoning – Function of appeal panel confined to considering grounds raised in appeal – Held that appeal panel exceeded jurisdiction by embarking on alternative examination after accepting error below – Erroneous Medical Assessment Certificate quashed – Held that as a matter of law, only one particular determination should have been made – Appeal panel directed to issue certificate on terms to effect of that determination

Legislation Cited:
Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), s 66
Workplace Injury Management Act 1988 (NSW), ss 323, 327

Cases Cited:
Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053
Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304

Category: Principal judgment
Parties: David Aquilina (Plaintiff)
Secretary Department of Transport (First Defendant)
Member John Wynyard, Dr Gregory McGroder, and Dr Brian Noll as an Appeal Panel constituted under section 328 of the Workplace Injury Management and Compensation Act 1998 (Second Defendant)
President of the Personal Injury Commission of NSW (Third Defendant)
Representation:
Counsel:

D Hooke SC with L Morgan (Plaintiff)
T Grimes (First Defendant)
Submitting appearances (Second and Third Defendants)

Solicitors:
Turner Freeman Lawyers (Plaintiff)
BBW Lawyers (First Defendant)
NSW Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 21/351004

Judgment (EX TEMPORE)

BRERETON JA: The plaintiff David Aquilina is a 63 year-old electrician who at all material times was in the employ of the first defendant Transport for NSW at its Mortdale maintenance centre in the Maintenance and Technical Section. On 16 August 2017, in the course of his employment when endeavouring to access a train he slipped down a step, twisting his foot and ankle. After a complicated course of treatment, in the course of which he acquired an injury to the lumbar spine, he obtained medical reports and made a claim on the first defendant under the Workers Compensation Act 1987 (NSW), s 66, for lump sum compensation for permanent whole person impairment attributable to the injuries to the lower left extremity and lumbar spine. The first defendant disputed that there was a related condition affecting the lumbar spine, and the extent of the whole person impairment due to the accepted ankle injury.
The extent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1310
Decision Date: 28 September 2022

CaseChat Overview and Summary

The case of Aquilina v Transport for NSW involved a dispute regarding a medical assessment made in relation to workers' compensation. The dispute was brought before the court for judicial review of the decision made by a medical appeal panel. The appellant, Aquilina, challenged the outcome of the panel's decision which upheld the original assessment despite acknowledging an error.

The primary legal issue the court had to address was whether the appeal panel exceeded its jurisdiction by conducting an alternative examination after accepting that an error had been made in the initial medical assessment. The court also had to determine the correct scope of the appeal panel's function and whether the panel's decision was compliant with the legal requirements. Additionally, the court was required to decide whether the medical assessment certificate was valid and whether the panel's decision was lawfully made.

The court held that the appeal panel had indeed exceeded its jurisdiction by conducting an alternative examination after acknowledging an error in the initial assessment. The court clarified that the function of the appeal panel is strictly limited to considering the grounds raised in the appeal and not to conducting an independent review of the assessment. As a result, the court quashed the erroneous medical assessment certificate. Furthermore, the court determined that the appeal panel should have made only one particular determination, which was in line with the legal requirements. The court directed the appeal panel to issue a certificate on terms reflecting that determination. This decision underscores the importance of adherence to procedural fairness and the limited scope of review by appeal panels in workers' compensation matters.

Orders