Inner West Council v McQuade - [2025] NSWPICPD 32

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Inner West Council v McQuade [2025] NSWPICPD 32
APPELLANT:	Inner West Council
RESPONDENT:	Peter McQuade
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W4339/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	10 April 2025
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 25 June 2024 is revoked. 2. The matter is remitted to a different non- presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – the Personal Injury Commission’s power to refer a dispute as to permanent impairment for reassessment or re-consideration – s 329 of the Workplace Injury Management and Workers Compensation Act 1998 – principles applicable – Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286; Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56; Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 – considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms M Chaplin, solicitor
Bartier Perry Lawyers
Respondent:
Mr D Adhikary, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL:	McQuade v Inner West Council, W4339/23, 25 June 2024
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	25 June 2024

INTRODUCTION AND BACKGROUIND

Mr Peter McQuade (the respondent) brought proceedings in the Personal Injury Commission (the Commission) for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a number of injuries involving his right shoulder and right knee that were incurred over many years in the employ of the Inner West Council (the appellant).
The respondent claimed $79,890 for 28% whole person impairment resulting from the following injuries:
(a)    injury to the right knee on 23 March 2005;
(b)    injury to the right shoulder on 1 January 2010;
(c)    injuries to both the right knee and right shoulder on 12 October 2016, 27 June 2020 and 29 June 2020, and
(d)    injury to both the right knee and the right shoulder with a deemed date of 6 September 2022 as a consequence of the “nature and conditions” of his employment, which involved:
“lifting, manoeuvring, pushing and pulling of garbage bins and large plastic bins to and from trucks and over kerbs placing stress and strain upon both the right knee and right shoulder together with numerous twisting, turning episodes together with repeated weight bearing and associated stresses and strains upon both the right knee and right shoulder by way of aggravation, exacerbation or acceleration of a disease.”[1]
[1] Application to Resolve a Dispute (ARD), p 9, Injury Details – deemed date of 6 September 2022.
The list of pleaded injuries was subsequently amended to include an additional injury to the right shoulder on 12 December 2011 and further injuries to the right knee on 29 June 2005, 11 March 2013, and 15 October 2018.
The parties reached agreement as to the occurrence of all of those injuries and entered into Consent Orders dated 25 July 2023 in which the entire list…

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.

Continue reading Inner West Council v McQuade

Details

AGLC: Inner West Council v McQuade [2025] NSWPICPD 32
Case: [2025] NSWPICPD 32
Decision Date: 10 April 2025

CaseChat Overview and Summary

The case of Inner West Council v McQuade involved a dispute over workers' compensation, specifically concerning the reassessment of permanent impairment. The matter was heard in the Personal Injury Commission of New South Wales. The appellant, Inner West Council, sought to have the matter referred back for reassessment by a different medical assessor, arguing that the initial assessor had made errors in his assessment. The respondent, McQuade, opposed the referral, arguing that the assessment was correct and that the appellant had no grounds for seeking a reassessment.

The primary legal issue before the court was whether the Member of the Personal Injury Commission had the authority to refer the matter back for reassessment or reconsideration under section 329 of the Workplace Injury Management and Workers Compensation Act 1998. This required the court to interpret the statutory provisions and consider relevant case law, including Target Australia Pty Ltd v Mansour, Milosavljevic v Medina Property Services Pty Ltd, and Adriaansen v Dungog & District Retirement Living Limited. The court also had to determine whether the original medical assessor's failure to comply with the terms of the referral constituted an error that warranted a reassessment.

The Member of the Personal Injury Commission, after reviewing the submissions from both parties and the Medical Assessor's reports, concluded that the original Medical Assessor had indeed made an error by not complying with the terms of the referral. However, the Member found that the power to refer the matter back for reassessment lay with the President of the Commission, as an alternative to an appeal, or with a court or the Commission itself. The Member did not believe that he had the authority to refer the matter back for reassessment. The Member's decision was based on a strict interpretation of section 327, which deals with appeals, and section 329(1), which outlines the alternatives to an appeal.

Given this interpretation, the Member dismissed the appellant's application for a referral for reassessment or reconsideration. The Member's decision was grounded in the statutory framework and the relevant case law, which supported the view that the power to refer back for reassessment was not vested in the Member but in the President or another authorised body. This conclusion was consistent with the statutory provisions and the case law, which emphasised the need for a clear and authorised process for reassessment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 329 makes provision for the referral of a matter for further medical assessment or reconsideration as follows:“329 Referral of matter for further medical assessment or reconsideration(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—(a) the President as an alternative to an appeal against the assessment as provided by section 327, or(b) a court or the Commission.(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.” The Member’s reasons were delivered orally and transcribed.[9] He referred to the Consent Orders that were entered into by the parties, the referral to the Medical Assessor, and the MAC issued by Dr Mastroianni on 12 September 2023 in which the Medical Assessor determined the whole person impairments on the basis of one deemed date of injury of 6 September 2022. He noted that the parties appealed the medical assessment because the Medical Assessor had fallen into error by not complying with the terms of the referral.[9] Transcript of proceedings (T), McQuade v Inner West Council, W4339/23, 25 June 2024. The Member quoted various paragraphs from the subsequent MAC issued by the Appeal Panel dated 30 April 2024, in which the Appeal Panel determined that the Medical Assessor had not complied with the terms of the referral by not undertaking an assessment of the impairment arising from the separate dates of injury. He noted that Medical Assessor Oates, who was on the Appeal Panel, conducted a medical examination of the respondent on 1 February 2024 and reported in great detail in respect of the various injuries. The Member invited the parties to provide a “recap” of their submissions as to the appellant’s application for a referral for re-assessment or reconsideration. The Member referred to the quotations taken by him from both MACs and indicated that his reasons included those quoted paragraphs (it is not necessary for those paragraphs to be reproduced here). He observed that the original Medical Assessor did not comply with the referral because he considered it to be impossible to make the required assessments and that the Appeal Panel considered that that was either an obvious or demonstrable error. The Member observed that although Medical Assessor Oates identified each of the separate injuries in the MAC, his assessment only identified a global percentage for the whole person impairments. The Member said that the appellant sought to have the matter referred back to a Medical Assessor but said that he did not accept that he had the power to do so. He said that:“In section 327 it speaks of an appeal and section 329(1) speaks of the options open to the President as an alternative to an appeal, to refer the matter back for a court or the Commission.”[10][10] T22.31–34.