1. The decision be quashed and the matter referred to the Appeal Panel to be dealt with according to law. 2. The defendant bear the plaintiff’s costs of the proceedings, other than the costs thrown away in respect of the hearing listed on 16 December 2009. The Plaintiff is to bear the defendant's costs, in that respect.
CATCHWORDS:
APPEAL - Workers Compensation - appeal from Workers Compensation Commission Appeal Panel - construction of s 323 of the Workplace Injury Management and Workers Compensation Act 1998 - error made - appeal upheld - medical panel decision quashed - costs
Applicant: Warwick James Cole Respondent: Wenaline Pty Limited
FILE NUMBER(S):
SC 30048/09
COUNSEL:
Applicant: Mr P R Stockley, counsel Respondent: Mr G Parker, counsel
SOLICITORS:
Applicant: Stacks/Taree Respondent: Turks Legal
LOWER COURT JURISDICTION:
Compensation Court
LOWER COURT FILE NUMBER(S):
M1-007201/08
LOWER COURTJUDICIAL OFFICER :
Arbitrator Bruce McManamey
LOWER COURT DATE OF DECISION:
24 April 2009
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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LIST
SCHMIDT J
TUESDAY, 23 FEBRUARY 2010
30048/09 Warwick James Cole v Wenaline Pty Limited
JUDGMENT
1 HER HONOUR: By amended summons filed in July 2009, the plaintiff Mr Cole seeks orders under s 69 of the Supreme Court Act 1970 quashing a decision given on 19 February 2009 by a Workers Compensation Commission Appeal Panel on the ground of judicial error on the face of the record.
2 Mr Cole was injured in October 2005 while he was manoeuvring a 44 gallon drum of oil and fuel. Liability was accepted for his injury and workers compensation payments and medical expenses have been paid. Mr Cole had worked as a farm labourer for the defendant for some 6 years prior to the injury. In February 2008, Mr Cole had a lumbo-sacral disectomy. He claimed permanent impairment, pain and suffering and an assessment of his whole of person impairment under s 66 of the Workers Compensation Act 1987.
3 Mr Cole was assessed as having an 11% whole person injury as the result of the back injury. That assessment had regard to guidelines published by the WorkCover Authority under s 322(1) of the Workplace Injury Managementand Workers Compensation Act 1998, which required in [4.1] that assessment of the spine be conducted using ‘diagnosis related estimates (DREs)’ dealt with in Chapter 15 of the American Medical Association Guides to the Evaluation of Permanent Impairment 5 ('AMA5'), subject to certain modifications specified later in the guidelines. In [4.33] of the guideline such an adjustment…
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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AGLC
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Case
[2010] NSWSC 78
Decision Date
CaseChat Overview and Summary
The appellant, Cole, appealed to the Supreme Court against a decision of the Workers Compensation Commission Appeal Panel, which had dismissed Cole's application for review of a decision by a medical panel. The dispute centred on the interpretation and application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998, specifically whether the medical panel's decision to reject Cole's claim for workers' compensation was lawful. The respondent, Wenaline Pty Ltd, defended the Appeal Panel's decision.
The key legal issue before the court was whether the Appeal Panel had correctly interpreted and applied section 323 of the Act. Cole argued that the Appeal Panel had made an error in its interpretation of the statutory provisions, which led to the rejection of Cole's claim. The court had to determine whether the Appeal Panel's interpretation was consistent with the statutory language and whether any errors made were material. The court also had to consider whether the Appeal Panel had adequately considered the evidence and arguments presented by Cole.
The court found that the Appeal Panel had indeed made an error in interpreting section 323 of the Act. The court held that the Appeal Panel had not correctly applied the statutory provisions and that this error was material to the outcome of the case. The court quashed the Appeal Panel's decision and allowed the appeal. The court further held that the Appeal Panel had not adequately considered the evidence and arguments presented by Cole. As a result, the court ordered that the costs of the appeal be paid by the respondent.