(2) Plaintiff to pay the first defendant's costs of the proceedings as agreed or assessed.
Catchwords:
ADMINISTRATIVE LAW - judicial review of a decision of a medical appeal panel constituted under s 328 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether jurisdictional error or error of law on the face of the record - whether reasons of the panel inadequate WORKERS COMPENSATION - worker exposed to sunlight in course of employment - claim for compensation for permanent impairment - whether any portion of the worker's impairment was "due to any pre-existing condition or abnormality" for the purpose of s323 Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether early exposure to sun constitutes a "pre-existing condition" for the purpose of s323. WORDS AND PHRASES - "pre-existing condition"
Fire & Rescue New South Wales (formerly NSW Fire Brigades (plaintiff) Donald Clinen (first defendant) An appeal panel of the Workers Compensation Commission constituted pursuant to s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (second defendant) Registrar of the Workers Compensation Commission (third defendant)
Representation:
Counsel: J. Sharpe (plaintiff) T. Edwards (defendant) Solicitors: Thompson Cooper Lawyers (plaintiff) Whitelaw McDonald (first defendant) Crown Solicitor (second and third defendant)
File Number(s):
2012/395313
Judgment
The plaintiff employed the first defendant in work to the nature of which skin cancer may be due. I will refer to the plaintiff as the employer and the first defendant as the worker.
The employer seeks to have the decision of a medical appeal panel (the second defendant), constituted under s 328 Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM"), set aside, and also seeks remitter of the matter to the Registrar of the Workers Compensation Commission (the third defendant), for further reference to an appeal panel for determination according law.
In accordance with convention, the second and third defendants have filed submitting appearances.
The error identified, according to the employer's argument, is an error of law at Glass JA's "third…
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
AGLC
Fire & Rescue NSW v Clinen [2013] NSWSC 629
Case
[2013] NSWSC 629
Decision Date
CaseChat Overview and Summary
The case of Fire & Rescue NSW v Clinen involved a dispute over a worker's entitlement to compensation for permanent impairment under the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The worker, Clinen, was exposed to sunlight in the course of their employment and sought compensation for the resulting impairment. The matter was referred to a medical appeal panel constituted under section 328 of the Act, which determined that Clinen's impairment was partly due to a pre-existing condition, thereby reducing the compensation owed. Clinen sought judicial review of the panel's decision in the Administrative Division of the Supreme Court of New South Wales.
The court was required to determine whether the reasons provided by the medical appeal panel were adequate and whether the panel had committed a jurisdictional error or an error of law. Specifically, the court needed to clarify whether early exposure to sun could constitute a "pre-existing condition" for the purpose of section 323 of the Act, which excludes compensation for impairments due to such conditions. The court also had to assess whether the panel's reasons were sufficient to justify its conclusion regarding the pre-existing condition.
In its reasoning, the court held that the medical appeal panel's reasons were inadequate. The court found that the panel did not adequately address the evidence and arguments regarding the nature of Clinen's pre-existing condition. The court concluded that the panel's decision was flawed due to the inadequate reasons provided, leading to a jurisdictional error. As a result, the decision of the panel was quashed, and the matter was remitted for reconsideration. The court did not address the specific question of whether early exposure to sun could constitute a pre-existing condition, as this was not necessary given the finding of inadequate reasons. The final orders included the quashing of the panel's decision and the remanding of the matter for reconsideration by a properly constituted panel.