Broadspectrum (Australia) Pty Ltd v Wills - [2019] NSWSC 1797

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Broadspectrum (Australia) Pty Ltd v Wills [2019] NSWSC 1797
Hearing dates: 3 December 2019
Decision date: 17 December 2019
Jurisdiction: Common Law
Before: Meagher J
Decision:
1. Dismiss the amended summons filed 31 May 2019.
2. Plaintiff pay the first defendant’s costs of the proceedings.

Catchwords: ADMINISTRATIVE LAW – judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323(1) – where defendant had pre-existing psychiatric conditions which were being treated and were asymptomatic – where work injury resulted in psychological injuries and whole person impairment – where Medical Appeal Panel assessed percentage deduction to whole person impairment for pre-existing conditions at 20% of whole person impairment – whether error of law by not taking fact of treatment into account – whether reasons adequate for not doing so
Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 65A, 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 322, 323, 326, 327, 328
Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149; [1996] HCA 44
Matthew Hall Pty Ltd v Smart [2000] NSWCA 284
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324
Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Texts Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016)
Category: Principal judgment
Parties: Broadspectrum (Australia) Pty Ltd (plaintiff)
Fiona Louise Wills (first defendant)
Workers Compensation Commission of New South Wales (second defendant)
Medical Appeal Panel of the Workers Compensation Commission of New South Wales constituted by Arbitrator John Wynyard and Approved Medical Specialists, Dr Julian Parmegiani and Dr Nicholas Glozier (third defendant)
Representation:
Counsel:
D J Hooke SC / E E Grotte (plaintiff)
D E Baran (first defendant)
Solicitors:
Mills Oakley Lawyers (plaintiff)
Attwood Marshall Lawyers (first defendant)

File Number(s): 2019/126214
Publication restriction: N/A

Judgment

This is an application under Supreme Court Act 1970 (NSW), s 69 for judicial review of a decision of an Appeal Panel of the Workers Compensation Commission determining an appeal under Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act), s 327. That appeal was from an assessment of an approved medical specialist (AMS) as to the degree of permanent impairment of the first defendant worker, Ms Wills, arising from psychological injuries suffered as the result of a work incident on 3 May 2014 which involved a sexual assault. The AMS assessed Ms Wills’ level of permanent impairment at 22% using the psychiatric impairment rating scale (PIRS) mandated by the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) (the Guidelines). The AMS also found that she suffered from pre-existing psychiatric injuries which directly contributed to her current…

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: [2019] NSWSC 1797
Decision Date: 17 December 2019

CaseChat Overview and Summary

In the case of Broadspectrum (Australia) Pty Ltd v Wills, the primary dispute was between an employer, Broadspectrum (Australia) Pty Ltd, and an employee, Wills. The matter was heard in the Supreme Court of New South Wales, which was tasked with addressing issues related to the assessment of whole person impairment under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The central issue was whether the Medical Appeal Panel had erred in its assessment by not considering the fact that Wills' pre-existing psychiatric conditions were being treated and were asymptomatic at the time of the injury. The case required the court to determine whether the Panel's decision to deduct 20% of the whole person impairment for these pre-existing conditions constituted an error of law and whether the reasons provided by the Panel for not taking the treatment status into account were adequate.

The court examined whether the Panel had appropriately considered the treatment status of Wills' pre-existing conditions in their assessment of the whole person impairment. The court recognised that the Panel had acknowledged the treatment and asymptomatic nature of the conditions but still opted to deduct a percentage based on the pre-existing conditions. The reasoning provided by the Panel for not taking the treatment status into account was scrutinised to ascertain whether it was sufficient and aligned with the legislative intent. The court had to determine whether the Panel's decision was reasonable and whether there was a failure to consider a relevant factor that warranted judicial intervention.

After careful consideration, the court found that the Panel had indeed erred in not adequately taking the treatment status of Wills' pre-existing conditions into account. The court determined that the Panel's reasons for not doing so were not sufficient, as they did not properly address the impact of the treatment on the whole person impairment assessment. Consequently, the court granted the application for judicial review and quashed the Panel's decision, directing the Panel to reassess the whole person impairment with proper consideration of the treatment status of the pre-existing conditions. This decision underscored the importance of thorough and legally sound reasoning in administrative decisions affecting workers' compensation claims.

Orders