Turner v Truss-T-Frame Timbers Pty Ltd - [2021] NSWSC 1088

Supreme Court

New South Wales

Medium Neutral Citation: Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC 1088
Hearing dates: 19 August 2021
Date of orders: 27 August 2021
Decision date: 27 August 2021
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The decision of the appeal panel be set aside;
2. Remit the matter to the President of the Personal Injury Commission of New South Wales to be determined in accordance with law;
3. Unless the parties’ approach to be heard within 7 days, Mr Turner’s costs, as agreed or assessed, are to be borne by the first defendant.

Catchwords:
WORKERS COMPENSATION – Determination of claims – Complex regional pain syndrome – Appeal by employee on ground of demonstrable error – Where both approved medical officer and medical appeal panel did not consider criteria which governed the assessment of complex regional pain syndrome specified in the applicable Guidelines for the Evaluation of Permanent Impairment
ADMINISTRATIVE LAW – Judicial review – Whether appeal panel erred in not considering grounds of appeal – Whether appeal panel erred by not providing sufficient reasons for its decision

Legislation Cited:
NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition)1.6. ch 2, 16, 17
Uniform Civil Procedure Rules r 59
Workers Compensation Act 1987 (NSW) ss 65, 66
Workers Compensation Regulation 2016 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 4(1), 119, 250, 254, 260, 264, 287, 287A-289A, 290, 293, 319, 321, 322, 322A, 324, 325, 327, 328, 376, Pts 4, 7 Ch 7

Cases Cited:
Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156
Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284
Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Ryder v Sundance Bakehouse [2015] NSWSC 526
Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216; 67 MVR 601
Skates v Hills Industries Ltd [2021] NSWCA 142
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324
Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Wishart v Fraser (1941) 64 CLR 470 [1941] HCA 8

Category: Principal judgment
Parties: Matthew Turner (Plaintiff)
Truss-T-Frame Timbers Pty Ltd (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
A Medical Assessor constituted by Dr Yiu-Key Ho (Third Defendant)
A Medical Appeal Panel constituted by Member Jane Peacock, Dr James Bodel and Dr Brian Stephenson (Fourth Defendant)
Representation: Counsel:
Mr E Romaniuk SC (Plaintiff)
Mr G Horan (Plaintiff)
Mr P Stockley (Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
Lee Legal Group (First Defendant)
Crown Solicitors (Second, Third & Fourth Defendants)

File Number(s): 2021/91464

Judgment

Mr Turner was injured in 2016 while working on a…

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: [2021] NSWSC 1088
Decision Date: 27 August 2021

CaseChat Overview and Summary

In Turner v Truss-T-Frame Timbers Pty Ltd, the dispute centred on the determination of a claim for workers' compensation by the plaintiff, Mr Turner, against the defendant, Truss-T-Frame Timbers Pty Ltd. Mr Turner claimed compensation for complex regional pain syndrome (CRPS), a chronic pain condition, resulting from injuries sustained during his employment. The case was heard in the Federal Court of Australia, which was tasked with reviewing the decisions made by the approved medical officer and the medical appeal panel regarding Mr Turner's claim.

The primary legal issues before the court were whether the approved medical officer and the medical appeal panel had made a demonstrable error in their assessment of Mr Turner's CRPS by not considering the specific criteria for evaluating permanent impairment as outlined in the relevant guidelines. Additionally, the court examined whether the appeal panel had erred by not considering the grounds of appeal and by failing to provide adequate reasons for its decision.

The court found that both the approved medical officer and the medical appeal panel had indeed made a demonstrable error by not applying the specific criteria for evaluating permanent impairment of CRPS as set out in the guidelines. The court held that the appeal panel's failure to consider the grounds of appeal and to provide sufficient reasons for its decision constituted a breach of natural justice. Consequently, the court allowed the appeal, set aside the decision of the medical appeal panel, and remitted the matter for reconsideration in accordance with the proper legal principles.

The final orders of the court mandated that the matter be reconsidered by a different panel, ensuring that the specific criteria for evaluating permanent impairment of CRPS were properly applied and that adequate reasons for the decision were provided. The court's decision underscored the importance of adhering to established guidelines and procedural fairness in the adjudication of workers' compensation claims.

Orders