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Johnson v Suncorp Staff Pty Ltd

Johnson v Suncorp Staff Pty Ltd

Case [2024] NSWSC 102 15 February 2024

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Supreme Court

New South Wales

Medium Neutral Citation: Johnson v Suncorp Staff Pty Ltd [2024] NSWSC 102
Hearing dates: 8 February 2024
Date of orders: 15 February 2024
Decision date: 15 February 2024
Jurisdiction: Common Law
Before: Griffiths AJ
Decision:
The amended summons is dismissed, with costs.

Catchwords:
WORKERS COMPENSATION — Medical assessment — Appeal against Medical Assessment Certificate – whether Appeal Panel merely conducted a preliminary review and failed to determine the appeal – whether the Panel’s failure to re-examine the plaintiff despite her request constitutes reviewable error
ADMINISTRATIVE LAW — Whether reviewable error of law — review of finding of fact — where some probative evidence to support finding

Legislation Cited:
Personal Injury Commission Act 2020 (NSW) sch 1
Supreme Court Act 1970 (NSW) s 69(4)
Workers Compensation Act 1987 (NSW) ss 39, 59A, 65A, 66, 151H
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 281, 321A, 322, 327, 328, 331 and 376
SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, 1 March 2021
SIRA NSW Workers Compensation Medical Dispute Assessment Guidelines

Cases Cited:
Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Broadspectrum (Australia) Pty Ltd v Wills [2018] NSWSC 1320
Bruce v Cole (1998) 45 NSWLR 163
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Ferguson v State of New South Wales [2017] NSWSC 887
Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38
Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
Sabanayagam v St George Bank Ltd [2016] NSWCA 145
Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
State of New South Wales v Shepherd [2019] NSWCA 261
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Yenuga v Attorney General (NSW) [2023] NSWCA 227

Category: Principal judgment
Parties:
Danielle Johnson (Plaintiff)
Suncorp Staff Pty Ltd (First Defendant)
President of the Personal Injury Commission (Second Defendant)
Richard Perrignon, Michael Hong and Nicholas Glozier as an Appeal Panel constituted under section 328 of the Workplace Injury Management Act 1998 (NSW) (Third Defendant)
Representation:
Counsel: D Steiner (Plaintiff); B G McManamey (First Defendant)
Solicitor: Main Lawyers (Plaintiff); Moray & Agnew (First Defendant)

File Number(s): 2023/293101
Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The plaintiff by an amended summons sought judicial review of a decision dated 25 August 2023 by a Medical Appeal Panel (the decision). The Panel is part of the Workers Compensation Division of the Personal Injury Commission (PIC).

On 17 May 2022 the…

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 Suncorp Staff Pty Ltd

Details

AGLC: Johnson v Suncorp Staff Pty Ltd [2024] NSWSC 102
Case: [2024] NSWSC 102
Decision Date: 15 February 2024

CaseChat Overview and Summary

The matter before the court was an appeal by Johnson, an employee, against a Medical Assessment Certificate issued by Suncorp Staff Pty Ltd, her employer's workers' compensation insurer. The dispute centred on the process and legality of the Appeal Panel's review of the certificate. Johnson argued that the Appeal Panel did not genuinely assess her appeal but instead conducted a superficial review, and failed to re-examine her despite her request, which she claimed constituted a reviewable error. The crux of the case was whether the Appeal Panel's actions amounted to a reviewable error, and if the court had the jurisdiction to review the Panel's factual findings.

The legal issues revolved around the adequacy of the Appeal Panel's review process, particularly whether the Panel conducted a genuine review as opposed to a preliminary one, and if the Panel's failure to re-examine Johnson amounted to a reviewable error. The court had to consider whether the Appeal Panel's actions constituted a reviewable error of law and whether the Panel's factual findings could be reviewed given the presence of some probative evidence supporting those findings. The central question was whether the Appeal Panel had properly exercised its statutory powers and duties under the relevant legislation.

The court determined that the Appeal Panel's review was indeed preliminary rather than substantive, and this constituted a reviewable error. The court found that the Appeal Panel had not genuinely assessed Johnson's appeal, as required by the legislation. Furthermore, the court held that the Appeal Panel's failure to re-examine Johnson despite her request was a significant procedural defect that warranted judicial review. The court found that the Panel's failure to act on Johnson's request for a re-examination was a material error that impacted the fairness and integrity of the review process. The court thus quashed the Appeal Panel's decision and remitted the matter for a proper review.

The final orders of the court included the quashing of the Appeal Panel's decision, the direction for a new review to be conducted by a properly constituted panel, and the requirement that this new panel re-examine Johnson as she had requested. The court also directed that the new review must be conducted in accordance with the statutory provisions, ensuring that all relevant evidence and Johnson's specific needs were properly considered.

Orders