Vannini v Worldwide Demolitions Pty Ltd

The appellant, a worker who suffered a lower back injury, brought proceedings against the first respondent, Worldwide Demolitions Pty Ltd, concerning the degree of his permanent impairment. The dispute arose after an approved medical specialist (AMS) assessed the appellant's impairment without deducting any proportion for prior injury or pre-existing conditions. The employer appealed this assessment, arguing there was demonstrable error. The Appeal Panel revoked the AMS's certificate and issued a new one, making a 50 percent deduction for the proportion of impairment attributable to prior injury and pre-existing conditions. The appellant contended that the Appeal Panel had substituted its own decision for that of the AMS without first finding that the AMS's certificate contained demonstrable error, as required by s 327(3)(d) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW).

The central legal issues before the court were whether the primary judge erred in finding that the Appeal Panel had identified a demonstrable error in the AMS's certificate, whether the Panel was required to expressly state that the certificate contained demonstrable error, and whether the error identified by the Panel constituted a "demonstrable error" within the meaning of the Act.

The court considered the requirements of s 327(3)(d) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), which permits an Appeal Panel to revoke a certificate of assessment and issue a new one if it finds demonstrable error in the original certificate. The court reasoned that the Panel's decision to make a significant deduction for pre-existing conditions, which the AMS had not done, implicitly indicated that the Panel had found a demonstrable error in the AMS's assessment. The court held that it was not necessary for the Panel to use the precise phrase "demonstrable error" so long as its reasoning clearly demonstrated that it had identified such an error. The court concluded that the error identified by the Panel, namely the failure to account for the proportion of impairment due to prior injury and pre-existing conditions, was indeed a demonstrable error.

Leave to appeal was granted, and the appellant was directed to file a notice of appeal. However, the appeal was ultimately dismissed, and the appellant was ordered to pay the first respondent's costs.