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Parker v Select Civil Pty Ltd

Parker v Select Civil Pty Ltd

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Case Copied 21 February 2018 36 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140
Hearing dates: 27 September 2017
Date of orders: 21 February 2018
Decision date: 21 February 2018
Jurisdiction: Common Law - Administrative Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The Appeal Panel’s medical assessment certificate and statement of reasons dated 18 April 2017 is set aside.

(2) The matter is remitted to the Workers Compensation Commission to be determined according to law.
(3) The defendant is to pay the plaintiff’s costs on an ordinary basis.
Catchwords: ADMINISTRATIVE LAW - judicial review – decision of Medical Appeal Panel – evaluation of permanent impairment – Appeal Panel revoked a “medical assessment certificate” and issued a new certificate - whether Appeal Panel substituted their own view without identifying a real error – Medical Appeal Panel failed to establish an error
Legislation Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth edition, 1 April 2016)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management & Workers Compensation Act 1998 (NSW)
Cases Cited: Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Campbelltown City Council v Vegan [2004] NSWSC 1129
Ferguson v State of New South Wales & Ors [2017] NSWSC 887
Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194
Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
McGinn v Ashfield Council [2012] NSWCA 238
Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
NSW Police Force v Daniel Wark [2012] NSWWCCMA 36
Sanhueza v AAMI Limited [2010] NSWSC 774
Versace v Australia Best Tyres Auto Pty Ltd [2016] NSWSC 1540
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 40; [2013] HCA 43; 88 ALJR 52
Category: Principal judgment
Parties: Glen William Parker (Plaintiff)
Select Civil Pty Limited (First Defendant)
Workers Compensation Commission of New South Wales (Second Defendant)
The Medical Appeal Panel of the Workers Compensation Commission of New South Wales by Jane Peacock, Dr Julian Parmegiani and Dr Robert Gertler
Representation:
Counsel:
MJ Perry (Plaintiff)
PD Herzfeld with MT Sherman (First Defendant)
Solicitors:
Gorman Jones Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)
Submitting Appearances (Second and Third Defendants)

File Number(s): 2017/42928
Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review from a decision of the Medical Appeal Panel of the Workers Compensation Commission.
The plaintiff is Glenn William Parker. The first defendant is Select Civil Pty Limited (“Select Civil”). The second defendant is the Workers Compensation Commission of New South Wales. The third defendant is the Medical Appeal Panel of the Workers Compensation Commission of New South Wales comprised of Jane Peacock, Drs Julian…

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: [2018] NSWSC 140
Decision Date: 21 February 2018

CaseChat Overview and Summary

In the matter of Parker versus Select Civil Pty Ltd, the court considered the revocation of a medical assessment certificate by the Medical Appeal Panel. The certificate had evaluated the claimant's permanent impairment, and the Panel issued a new certificate with a different evaluation. The claimant sought judicial review of the Panel's decision, questioning whether the Panel had substituted their own view without identifying a real error in the initial evaluation.

The central legal issue before the court was whether the Panel had correctly identified an error in the original assessment when it revoked the certificate and issued a new one. Specifically, the court needed to determine if the Panel had acted within its powers by substituting its own view on the claimant's impairment without sufficient justification. The court also had to consider whether the Panel had adhered to the correct legal principles when making its decision.

The court found that the Panel had not correctly identified an error in the original assessment and had substituted its own view without proper justification. The Panel failed to establish that there was a real error in the initial evaluation. The court concluded that the Panel had not adhered to the correct legal principles and that its decision was flawed. The claimant's appeal was upheld, and the Panel's decision was quashed. The court ordered that the original medical assessment certificate be reinstated.

Orders