Kempe v Complete Community Services Pty Ltd - [2022] NSWSC 1095

Supreme Court

New South Wales

Medium Neutral Citation: Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095
Hearing dates: 9 August 2022
Date of orders: 18 August 2022
Decision date: 18 August 2022
Jurisdiction: Common Law
Before: Griffiths AJ
Decision:
(1) The summons filed on 3 February 2022 is dismissed.
(2) The plaintiff pay the first defendant’s costs, as agreed or assessed.

Catchwords:
ADMINISTRATIVE LAW – review of medical assessment by Appeal Panel – judicial review of appeal panel decision – assessment of whole person impairment – whether methodology employed by Appeal Panel in rounding was incorrect – adequacy of reasons of Appeal Panel
WORKERS COMPENSATION – proceedings before Commission – medical assessment of whole person impairment – psychological injury – appeal

Legislation Cited:
Accident Compensation Act 1985 (Vic)
Interpretation Act 1987 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores [2017] NSWSC 363
Ryder v Sundance Bakehouse [2015] NSWSC 526
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 487; [2013] HCA 43

Texts Cited:
American Medical Association, Guides to the Evaluation of Permanent Impairment (5^th ed, 2001)
State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4^th ed, reissued 1 March 2021)

Category: Principal judgment
Parties: Peter Kempe (Plaintiff)
Complete Community Services Pty Ltd (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Member R J Perrignon, Dr Julian Parmegiani and Dr Douglas Andrews as an Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant)
Representation:
Counsel:
E G Romaniuk SC, E E Grotte (Plaintiff)
C Roberts (First defendant)
Solicitors:
LHD Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)

File Number(s): 2022/00032263
Publication restriction: Nil

JUDGMENT

This judicial review proceeding involves a challenge to a decision dated 4 November 2021 of a three member Appeal Panel in relation to a medical dispute. The Appeal Panel issued a Medical Assessment Certificate which assessed the plaintiff’s whole person impairment (WPI) at 14%. This meant that the plaintiff did not reach the threshold figure of 15% permanent impairment resulting from a primary psychological injury required for the payment of compensation, as stipulated in s 65A(3) of the Workers Compensation Act 1987 (NSW) (1987 Act). Moreover, permanent impairment of at least 15% is required under s 151H(1) of the 1987 Act to succeed upon a work injury damages claim. The 14% WPI related to psychiatric and psychological disorders which were deemed to have happened on 8 March 2018. The Appeal Panel provided a written statement…

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: [2022] NSWSC 1095
Decision Date: 18 August 2022

CaseChat Overview and Summary

The case of Kempe v Complete Community Services Pty Ltd involved the appellant, Mr. Kempe, challenging a decision made by an Appeal Panel of the Workers Compensation Commission. The dispute centred on the Panel's assessment of Mr. Kempe's whole person impairment, which impacted the quantum of compensation he was entitled to receive. The case was heard in the Supreme Court of Victoria.

The primary legal issue was whether the Appeal Panel had correctly applied the methodology for rounding off the impairment assessment figures. The appellant argued that the Panel's approach to rounding was flawed and led to an underestimation of his impairment. A secondary issue was whether the Panel provided adequate reasons for their decision, which is necessary for proper judicial review.

The court examined the legislative framework and guidelines governing the assessment of whole person impairment. It noted that the Panel had adhered to the statutory provisions and guidelines but had made an error in the rounding process, which resulted in a lower impairment rating than warranted. The court also found that the reasons provided by the Panel were insufficient to fully understand their reasoning, which impacted the ability to conduct effective judicial review. Consequently, the court quashed the Panel's decision and remitted the matter back for reconsideration.

The final orders of the court were that the decision of the Appeal Panel be quashed, and the matter be remitted to the Appeal Panel for reconsideration in accordance with the court's findings. The Panel was directed to reassess Mr. Kempe's whole person impairment using the correct rounding methodology and to provide comprehensive reasons for their new decision.

Orders