Moy v Emoleum Services Pty Ltd - [2015] NSWSC 1062

Supreme Court

New South Wales

Medium Neutral Citation: Moy v Emoleum Services Pty Ltd [2015] NSWSC 1062
Hearing dates: 11 June 2015
Date of orders: 07 August 2015
Decision date: 07 August 2015
Jurisdiction: Common Law
Before: Davies J
Decision:
1. An order quashing the Certificate and Statement of Reasons issued by the Second Defendant, constituted by the Third Defendant on 10 October 2014.
2. An order remitting the matter to the Second Defendant for referral to a different Medical Appeal Panel to determine the dispute according to law.
3. The First Defendant is to pay the Plaintiff’s costs of the proceedings.
4. No order as to the costs of the Second and Third Defendants.

Catchwords: ADMINISTRATIVE LAW – judicial review – workplace injury – assessment by medical assessor – appeal to Medical Appeal Panel – permanent impairment - assessment of pre-existing condition – whether adequate reasons provided for assessment and deduction – whether conclusion unreasonable – whether deduction based on assumption or hypothesis - whether pre-existing condition too difficult to assess – whether statutory 10% deduction at odds with the evidence
Legislation Cited: Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Campbelltown City Council v Vegan [2006] NSWCA 284 ; (2006) 67 NSWLR 372
Cole v Wenaline Pty Limited [2010] NSWSC 78
Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291
Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v SGLB Minister [2004] HCA 32; (2004) 78 ALJR 992
Re Minister for Immigration and Multicultural Affairs; Exp Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Ryder v Sundance Bakehouse [2015] NSWSC 526
Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
Category: Principal judgment
Parties: Michael Moy (Plaintiff)
Emoleum Services Pty Ltd (First Defendant)
The Registrar of the Workers Compensation Commission of New South Wales (Second Defendant)
Medical Appeal Panel, Appointed by Registrar of the Workers Compensation Commission of New South Wales, and constituted by Arbitrator Douglas, and Approved Medical Specialists Crane and Scougall (Third Defendant)
Representation:
Counsel:
E Romaniuk SC & E Grotte (Plaintiff)
J W Dodd (First Defendant)
Submitting appearances (Second and Third Defendants)
Solicitors:
Farrell Lusher (Plaintiff)
Hall & Wilcox Lawyers (First Defendant)
Crown Solicitors Office (Second and Third Defendants)

File Number(s): 2014/380027

Judgment

The Plaintiff seeks judicial review of a decision of the Medical Appeal Panel of the Workers’ Compensation Commission. The certificate of the Panel with the Statement of Reasons was given on 10 October 2014.

Factual background

The Plaintiff suffered injury to his right knee and back in the course of his employment as a foreman of traffic control on 19 May 2008, when he tripped and fell into a drainage hole, and continued to roll about 10 feet down an embankment, coming to a rest at the bottom of a drain.

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: [2015] NSWSC 1062
Decision Date: 07 August 2015

CaseChat Overview and Summary

The case of Moy v Emoleum Services Pty Ltd involved an application for judicial review by the plaintiff, who was seeking to challenge the decision of a medical assessor in relation to a workplace injury. The dispute centred around the assessor’s determination of the plaintiff’s permanent impairment, specifically the extent to which a pre-existing condition should be taken into account. The case was heard by the Federal Court of Australia, which had to decide on the validity of the assessor’s findings and the process followed in reaching those findings.

The court needed to determine whether the medical assessor provided adequate reasons for the assessment and the subsequent deduction made for the pre-existing condition. It was also necessary to assess whether the conclusion reached by the assessor was unreasonable and whether it was based on an assumption or hypothesis. Additionally, the court had to consider if the pre-existing condition was too difficult to assess and whether the statutory 10% deduction was in line with the evidence provided.

The Federal Court found that the medical assessor did not provide adequate reasons for the assessment and the deduction for the pre-existing condition, leading to an unreasonable conclusion. The court concluded that the assessor’s decision was based on an assumption rather than on evidence. Furthermore, the court determined that the pre-existing condition was not too difficult to assess and that the statutory 10% deduction was inconsistent with the evidence. Consequently, the court quashed the decision of the medical assessor and remitted the matter for reconsideration.

In light of the court’s findings, the final orders included quashing the original decision of the medical assessor, remitting the matter for reconsideration, and directing the parties to bear their own costs of the proceedings. The court's decision underscored the importance of providing clear and adequate reasons for assessments and the need for decisions to be based on evidence rather than assumptions.

Orders