Stolzenberg v Workers Compensation Nominal Insurer

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Stolzenberg v Workers Compensation Nominal Insurer [2025] NSWCA 40
Hearing dates: 28 February 2025
Date of orders: 17 March 2025
Decision date: 17 March 2025
Before: Stern JA at [1];
Griffiths AJA at [102];
Price AJA at [115]
Decision:

(1)   Amended summons filed 14 October 2024 is dismissed.

Catchwords:

WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor fabricated evidence or made factual errors resulting in jurisdictional error

WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor failed to apply [1.32] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in an error of law on the face of the record

WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor adopted wrong criteria in NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in jurisdictional error or error of law on the face of the record

WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor had conflict of interest or decision was affected by actual or apprehended bias or he abused his power such that the assessment suffers from jurisdictional error

WORKERS COMPENSATION — medical assessment — medical assessment certificate —decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel — whether limited time to submit application to appeal constituted denial of procedural fairness — whether decision was open to delegate

WORKERS COMPENSATION — medical assessment — certificate of determination — whether certificate of determination tainted by jurisdictional error or error of law on face of the record in decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel

Legislation Cited:

Independent Commission against Corruption Act 1988 (NSW), s 8

Personal Injury Commission Act 2020 (NSW), ss 3, 16, 18, 33, 58

Personal Injury Commission Regulation 2020 (NSW), reg 6

Personal Injury Commission Rules 2021, r 108

Privacy and Personal Information Protection Act 1998 (NSW), s 59D

Supreme Court Act 1970 (NSW), ss 51, 69

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Workers Compensation Act 1987 (NSW), ss 15, 65A, 151H

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 35, 294, 321, 322, 326, 327, 329

Cases Cited:

AB v Director of Public Prosecutions [2016] NSWCA 73

Application of the Presumption of Regularity (1974) 48 ALJ 118

Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86

Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177

Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281

Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175

Bunnings Group Ltd v Hicks [2008] NSWSC 874

Cassell v R (2000) 201 CLR 189; [2000] HCA 8

Dominice v Allianz…

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Details
Case
[2025] NSWCA 40
Decision Date

CaseChat Overview and Summary

In *Stolzenberg v Workers Compensation Nominal Insurer*, the applicant, Mr Stolzenberg, sought to challenge a medical assessment certificate concerning his permanent impairment. The dispute arose from the assessment of his permanent impairment, with Mr Stolzenberg alleging that the Medical Assessor had fabricated evidence, made factual errors, failed to apply specific provisions of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, adopted wrong criteria, or suffered from a conflict of interest or bias, all of which he contended constituted jurisdictional error or an error of law on the face of the record. Furthermore, Mr Stolzenberg challenged the decision of a delegate of the President of the Personal Injury Commission not to allow his appeal to proceed to a Medical Appeal Panel, arguing this decision was affected by a denial of procedural fairness due to the limited time to submit his appeal application. The matter was heard by Stern JA, Griffiths AJA, and Price AJA in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the Medical Assessor's assessment of permanent impairment was vitiated by jurisdictional error or an error of law on the face of the record, based on the applicant's allegations of fabricated evidence, factual errors, misapplication of the Guidelines, adoption of wrong criteria, or bias. Additionally, the Court had to consider whether the delegate's decision to refuse the appeal to the Medical Appeal Panel constituted a denial of procedural fairness or an error of law, and whether that decision was legally open to the delegate.

The Court of Appeal dismissed the applicant's amended summons. The reasoning, though not detailed in the provided text, would have involved an analysis of the evidence presented in relation to the Medical Assessor's conduct and the application of the relevant Workers Compensation legislation and Guidelines. The Court would have assessed whether the alleged errors amounted to jurisdictional error or an error of law on the face of the record, and whether the procedural fairness requirements were met in the delegate's decision. The final orders reflect the Court's determination that the applicant's challenges were unsuccessful.

Orders

Orders of the court

(1) Amended summons filed 14 October 2024 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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