Elsworthy v Forgacs Engineering Pty Ltd - [2018] NSWSC 1638

Supreme Court

New South Wales

Medium Neutral Citation: Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638
Hearing dates: 1 August 2018
Date of orders: 31 October 2018
Decision date: 31 October 2018
Jurisdiction: Common Law
Before: Fagan J
Decision:
(1) Extension of time for the filing of the summons as against the fourth defendant, Dr David Lewington, is refused.
(2) The summons is dismissed.
(3)The plaintiff is to pay the first defendant’s costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – Workers Compensation Commission – Medical Appeal Panel – appeal against medical assessment certificate (“MAC”) issued by Approved Medical Specialist (“AMS”) – where MAC issued for nil whole person impairment following workplace accident – where claim by plaintiff that he developed complex regional pain syndrome (“CRPS”) – diagnostic criteria for CRPS not met upon examination of plaintiff – whether incorrect criteria applied by AMS – whether Medical Appeal Panel should have conducted independent clinical examination of plaintiff – summons dismissed
Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: N/A
Texts Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition)
Category: Principal judgment
Parties: Stephen Elsworthy (plaintiff)
Forgacs Engineering Pty Ltd, c/- Allianz Australia Workers Compensation (first defendant)
Workers Compensation Commission (second defendant)
The Medical Appeal Panel constituted by Mr Grahame Edwards, Professor Michael Fearnside and Dr Michael Davies (third defendant)
The Approved Medical Specialist, Dr David Lewington (fourth defendant)
Representation:
Counsel:
Mr E Romaniuk SC & Ms E Grotte (plaintiff)
Mr L Robison (first defendant)
Submitting appearances (second, third and fourth defendants)
Solicitors:
Whitelaw McDonald & Associates (plaintiff)
Kaden Boriss (first defendant)
Crown Solicitor’s Office (second, third and fourth defendants)

File Number(s): 2017/363075

Judgment

By an amended summons filed on 5 July 2018 the plaintiff seeks judicial review of a decision of a Medical Appeal Panel (“the Panel”) appointed by the Workers Compensation Commission (“the Commission”) under s 327 of the Workplace Injury Management and Workers Compensation Act1998 (NSW) (“the 1998 Act”). The Commission is the second defendant and the Panel is the third defendant. The Panel’s decision was made on 1 September 2017. The plaintiff claims a declaration that the Panel’s decision and statement of reasons are void and an order that they be set aside.
In 2011 the plaintiff was a boilermaker employed by the first defendant, whose interests are defended in these proceedings by its insurer, Allianz Australia Workers Compensation. On 2 May 2011 the plaintiff tripped at work and claims to have fallen face forward onto his outstretched hands, landing heavily on the left side and injuring his left wrist, elbow and knee. He was then aged 51 years. The plaintiff claims he developed Complex Regional Pain Syndrome (“CRPS”) as a result of the injury to the left wrist. On 20 March 2017 an arbitrator in the Commission remitted the claim to the Registrar, for referral of assessment of the plaintiff’s whole person impairment to an Approved Medical Specialist (“AMS”) pursuant to s 321…

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: [2018] NSWSC 1638
Decision Date: 31 October 2018

CaseChat Overview and Summary

Elsworthy brought a claim against Forgacs Engineering, seeking review of a decision by the Medical Appeal Panel. The plaintiff contended that he had developed complex regional pain syndrome (CRPS) following a workplace accident, but the Approved Medical Specialist (AMS) issued a medical assessment certificate (MAC) indicating nil whole person impairment. The plaintiff appealed to the Medical Appeal Panel, which upheld the AMS's decision, prompting the plaintiff to seek judicial review.

The court had to decide whether the AMS applied the correct diagnostic criteria for CRPS and whether the Medical Appeal Panel should have conducted an independent clinical examination of the plaintiff. The primary issue was whether the AMS correctly assessed the plaintiff’s condition and the extent to which the Panel should have reviewed the AMS’s findings.

The court found that the AMS applied the appropriate criteria for CRPS and had correctly determined that the plaintiff did not meet the diagnostic requirements. The court also held that the Medical Appeal Panel was not obliged to conduct an independent clinical examination. Instead, the Panel was entitled to rely on the AMS’s assessment, provided it was conducted in accordance with the statutory requirements and the AMS had exercised their professional judgment appropriately. Consequently, the summons was dismissed.

Orders