Windley v Workers Compensation Nominal Insurer - [2021] NSWSC 1125

Supreme Court

New South Wales

Medium Neutral Citation: Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125
Hearing dates: 7 July 2021
Date of orders: 03 September 2021
Decision date: 03 September 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The court orders:
(1) A declaration that the certificate and statement of reasons of the third defendant dated 4 February 2021 is set aside.
(2) The matter is remitted to the President of the Personal Injury Commission of New South Wales to be determined according to law.
(3) The first defendant is to pay the plaintiff’s costs

Catchwords:
ADMINISTRATIVE LAW – Judicial review– Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Review of the decision of a Medical Appeal Panel – Jurisdictional error – Error on face of the record – Complex regional pain syndrome – Whether Medical Appeal Panel erred in finding the Medical Assessor did not provide sufficient reasons

Legislation Cited:
Supreme Court Act 1970 (NSW), s 69
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 327, 328 and 331

Cases Cited:
Ballas v Department of Education [2020] NSWCA 86
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Cincotta v Police Citizens Youth Club NSW Ltd & Ors [2018] NSWSC 1588
El Masri v Woolworths Ltd [2014] NSWSC 1344
Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638
Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127
Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112
Minister for Immigration and Citizenship v SZMDS
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Petrovic v BC Serve No 14 Pty Ltd t/as Broadlex Cleaning Service [2007] NSWSC 1156
Sadsad v NRMA Insurance Limited [2014] NSWSC 1216
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324

Category: Principal judgment
Parties: Damien Windley (Plaintiff)
Workers Compensation Nominal Insurer (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
A Medical Appeal Panel constituted by Members John Harris, Dr Mark Burns and Dr Brian Noll (Third Defendant)
A Medical Assessor constituted by Dr Yu-Key Ho (Fourth Defendant)
Representation:
Counsel:
E Romaniuk (Plaintiff)
C Roberts (First Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
Hickson Lawyers (First Defendant)
Crown Solicitor, Submitting Appearance (Second, Third & Fourth Defendants)

File Number(s): 2021/58017
Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review of a decision of a Medical Appeal Panel of the Personal Injury Commission pursuant to ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
By amended summons filed 23 June 2021, the plaintiff seeks:

A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for the decision of the third defendant and issued by the second defendant is void and of no effect.

An order setting aside the decision and the statement of reasons for decision of the third defendant…

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 1125
Decision Date: 03 September 2021

CaseChat Overview and Summary

In the matter of Windley v Workers Compensation Nominal Insurer, the dispute arose from the determination of a Medical Appeal Panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The appellant, Windley, sought judicial review of a decision made by the Panel concerning a claim for compensation related to complex regional pain syndrome. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the Medical Appeal Panel had made a jurisdictional error or an error on the face of the record in its determination. Specifically, the court had to consider if the Panel correctly assessed whether the Medical Assessor had provided sufficient reasons for his assessment of Windley's claim. The appellant argued that the Panel had failed to properly apply the statutory criteria for assessing the adequacy of reasons provided by the Medical Assessor.

The court examined the statutory provisions and the Panel's decision, focusing on the requirement for the Medical Assessor to provide reasons that are adequate to support the conclusions reached. The court found that the Panel had indeed erred in its interpretation of the statutory criteria and in its assessment of the sufficiency of the reasons provided. This error was deemed to be a jurisdictional error because it went to the very jurisdiction of the Panel to make the decision. Consequently, the court allowed the appeal and quashed the Panel's decision.

The court ordered that the matter be remitted to the Personal Injury Commission for reconsideration in light of the court's findings. The Panel was directed to properly apply the statutory criteria and to provide clear reasons for its determination concerning the adequacy of the reasons provided by the Medical Assessor.

Orders