Lazarus v Workers Compensation Nominal Insurer

[2024] NSWSC 1443

Supreme Court

New South Wales

Medium Neutral Citation:

Lazarus v Workers Compensation Nominal Insurer [2024] NSWSC 1443

Hearing dates:

13 November 2024

Date of orders:

13 November 2024

Decision date:

13 November 2024

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

Orders in accordance with the consent judgment filed 1 November 2024

Catchwords:

CIVIL LAW – judicial review – parties agree – no question of principle

Legislation Cited:

Supreme Court Act 1970 (NSW), s 69

Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 328

Category:

Principal judgment

Parties:

Michelle Lazarus (Plaintiff)
Workers Compensation Nominal Insurer (First Defendant)
The President of the Personal Injury Commission of NSW (Second Defendant)
Medical Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant)

Representation:

Solicitors:
Turner Freeman Lawyers (Plaintiff)
Gair Legal (First Defendant)
NSW Crown Solicitor’s Office (Second and Third Defendants)

File Number(s):

2024/00342309

JUDGMENT

1. By summons filed on 16 September 2024 the plaintiff, Ms Lazarus, seeks judicial review of a decision made on 2 August 2024 by an appeal panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The appeal panel is the third defendant. The first and second defendants are, respectively, the Workers Compensation Nominal Insurer and the President of the Personal Injury Commission.

2. The parties agree that the plaintiff should have the relief she seeks, namely that the decision be quashed and the case remitted to the appeal panel. They also agree that the third defendant fell into the kind of error for which Ms Lazarus contends. In an admirable attempt to save time and costs, the parties have asked me to deal with the matter in chambers and on a limited amount of material and I agreed to do that.

3. In short:

• Ms Lazarus was entitled to compensation under the relevant legislation.

• In calculating the amount of compensation, the appeal panel fell into error and misapplied the statute. In the summons, those errors are articulated as follows:

1. “The third defendant determined the plaintiff was a Class 3 for Social Functioning under the PIRS rating scale. The second defendant and/or third defendant erred in making an error in Table 11.8 at page 17 of the PIRS Rating Form by inserting a Class 2 in the class column for Social Functioning instead of a Class 3. This error then resulted in the plaintiffs Aggregate Score being calculated as 22 per cent whole person impairment instead of 24 per cent whole person impairment.

2. The third defendant erred in not calculating the section 323 deduction in compliance with Clause 11.1 O of the applying SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (“the guidelines”). The applying guidelines required the third defendant to apply the specified methodology contained in Clause 11.10 Under the correct application of the applying guidelines, the plaintiffs pre-existing whole person impairment - score was 7 per cent (as found by the Medical Assessor when applying the specified methodology contained in Clause 11.10) and the correct final whole person impairment would be 17 per cent.

3. The third defendant erred in its construction and application of section 323 and erred, as a result, in the finding of a one half or 50 per cent deduction.”

• Those errors had a significant impact on the amount of compensation calculated and awarded and, as it is put in the summons, “vitiate” the decision and make it amenable to judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW).

4. The parties provided a Consent Judgment/Order which included as Annexure A the “Parties’ consent statement” which was in the following terms:

“The plaintiff contends that the third defendant’s 2 August 2024 decision was tainted by error as the third defendant failed to apply an increase to the plaintiffs rating for “social functioning” despite determining that this should occur.

The parties agree that the failure to increase the relevant rating in these circumstances was an error.

The plaintiff also contends that the third defendant erred in its approach to calculating a deduction for the plaintiff’s pre-existing condition.

Section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) requires that there be a deduction for “any proportion of the impairment that is due to ... any pre-existing condition”, and s 323(4) provides that the “Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section”.

Clause 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Guidelines) provides a method for calculating a deduction for psychiatric and psychological disorders.

The parties agree that the third defendant’s 2 August 2024 decision does not identify a clear basis for not following the Guidelines.

As a result, the first defendant admits that the third defendant fell into error, thus justifying the quashing of the third defendant's decision, and, generally, the orders to which the parties have consented.”

5. For those reasons, and by consent, I make the following orders:

1. The decision of the third defendant dated 2 August 2024 in matter W 8444/23 is quashed.

2. The certificate of determination dated 6 September 2024 in matter W8444/23 is set aside.

3. The plaintiff’s application to appeal against as decision of a medical assessor, dated 18 March 2024, is remitted to the third defendant to be determined according to law.

4. No order as to costs.

5. The parties’ consent statement at Annexure A to the Consent judgement and orders is noted.

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Decision last updated: 13 November 2024