Johnson v NSW Workers Compensation Commission - [2019] NSWSC 347

Supreme Court

New South Wales

Medium Neutral Citation: Johnson v NSW Workers Compensation Commission [2019] NSWSC 347
Hearing dates: 1 April 2019
Date of orders: 03 May 2019
Decision date: 03 May 2019
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Pursuant to s 69 of the Supreme Court Act 1970, the decision of the second defendant made on 18 July 2018 is quashed.
(2) Order that the matter be remitted to the first defendant to be dealt with in accordance with law.
(3) Third defendant to pay the plaintiff’s costs of these proceedings.

Catchwords: ADMINISTRATIVE LAW - Judicial Review - Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether Medical Appeal Panel was correct to apportion whole person impairment – whether the Medical Appeal Panel has to identify and state its diagnosis of the plaintiff’s condition
Legislation Cited: Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396; (1999) Aust Torts Reports 81‑531
Nicol v Macquarie University [2018] NSWSC 530
Texts Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth Edition, 1 April 2016)
Diagnostic and Statistical Manual of Mental Disorders (DSM-5)
International Statistical Classification of Diseases and Related Health Problems (ICD-10)
Category: Principal judgment
Parties: Elaine Johnson (P)
NSW Workers Compensation Commission (D1)
Glenn Capel, Professor Nicholas Glozier, Dr Julian Parmegiani as members of the Medical Appeal Panel of the Workers compensation Commission of NSW (D2)
Secretary NSW Department of Education (D3)
Representation:
Counsel:
P Stockley (P)
Submitting (D1, D2)
L Morgan (D3)
Solicitors:
Paul A Curtis & Co (P)
Crown Solicitors Office (D1, D2)
Moray & Agnew (D3)

File Number(s): 2018/316955
Publication restriction: Not Applicable

Judgment

On 17 October 2018, Elaine Johnson, the plaintiff, commenced proceedings by Summons against three defendants.
The first two defendants, namely the Registrar of The Workers Compensation Commission and the individually named members of the Medical Appeal Panel of The Workers Compensation Commission of NSW (“the Panel”), have filed submitting appearances but have taken no part in the proceedings.
The third defendant, the Secretary of the New South Wales Department of Education (“NSW Education”) is the only active defendant.
In the Summons, the plaintiff sought the following relief:

“Pursuant to s 69 of the Supreme Court Act 1970, the decision of the second defendant made 18 July 2018 is quashed and the matter remitted to a differently constituted medical appeal panel to determine the medical appeal according to law.”

NSW Education has opposed that relief.
On 29 January 2019, an Amended Summons was filed in which an additional order was sought in the alternative to the one set out above. At the hearing of the matter on 1 April 2019, the plaintiff abandoned reliance on the Amended Summons and sought only the relief set out at [4].

Decision under Challenge

The Summons challenges the decision of the second defendant, the individually named members of the Panel. On 18 July 2018, the Panel…

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 Johnson v NSW Workers Compensation Commission

Details

AGLC: Johnson v NSW Workers Compensation Commission [2019] NSWSC 347
Case: [2019] NSWSC 347
Decision Date: 03 May 2019

CaseChat Overview and Summary

In Johnson v NSW Workers Compensation Commission, the applicant sought judicial review of a decision made by the Medical Appeal Panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The panel had assessed the applicant's whole person impairment following a workplace injury and apportioned liability for the impairment between the applicant's pre-existing condition and the injury sustained at work. The applicant argued that the panel failed to properly identify and state its diagnosis of his condition, which led to an incorrect assessment of impairment.

The key legal issue before the court was whether the Medical Appeal Panel was required to identify and state its diagnosis of the applicant's condition when apportioning whole person impairment. The court needed to determine whether the panel's failure to do so rendered its decision unlawful. Additionally, the court had to consider whether the panel's approach to apportioning impairment was correct.

The court held that while the Medical Appeal Panel was not strictly required to identify and state its diagnosis, the lack of a clear diagnosis did not necessarily invalidate the panel's decision. The court found that the panel had indeed made a diagnosis, albeit not explicitly stated. The court concluded that the panel's approach to apportioning impairment was not erroneous, as it had considered all relevant factors, including the applicant's pre-existing condition and the workplace injury. The court dismissed the applicant's application for judicial review, affirming the decision of the Medical Appeal Panel.

The final orders of the court included a dismissal of the applicant's application for judicial review, with costs to be paid by the applicant. The court did not order any further proceedings or actions to be taken by the parties involved.

Orders