Zeineddine v Matar - [2009] NSWSC 646

CITATION: Zeineddine v Matar [2009] NSWSC 646

HEARING DATE(S): 27 May 2009

JUDGMENT DATE :
10 July 2009

JUDGMENT OF: Price J at 1

DECISION: 1. The summons is dismissed. 2. The plaintiff is to be pay the costs of the first defendant.

CATCHWORDS: WORKERS COMPENSATION - judicial review - Medical Appeal Panel - whether demonstrable error on medical assessment certificate of approved medical specialist - whether matters not put before Medical Appeal Panel could be argued upon judicial review - whether approved medical specialist and Medical Appeal Panel wrongly exercised jurisdiction - injury - causation - assessment of permanent impairment - whether Medical Appeal Panel made a demonstrable error in correcting medical assessment certificate - meaning of proportion in s 323(1) of the Workplace Injury Management and Workers Compensation Act 1998

LEGISLATION CITED: Supreme Court Act 1970 s 69, s 69(3), s 69(4)
Workplace Injury Management and Workers Compensation Act 1998 s 323, s 325, s 327,
s 328, s 328(2)
Workers Compensation Act 1987 s 68A

CATEGORY: Principal judgment

CASES CITED: Anderson v Judges of District Court of New South Wales (1992) 27 NSWLR 701
Attorney-General for (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
Craig v South Australia (1995) 184 CLR 163
Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192
Julius v Lord Bishop of Oxford (1885) App Cas 214
McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574
Pateman v Peninsula Village Limited trading as Peninsula Village Retirement Centre and Ors [2007] NSWSC 586
Treverrow v Registrar , WCCC [2008] NSWSC 632
Wikaira v Registrar of the Workers Compensation Commission & Anor [2005] NSWSC 954

TEXTS CITED: Aronson, Dyer and Groves Judicial Review of Administrative Action, 4th ed (2009) p 257 at [4.355]

PARTIES: Jawdat Zeineddine - plaintiff
Mohamad and Barinhan Matar - first defendant
Registrar of the Workers Compensation Commission - second defendant
Medical Appeal Panel, Workers Compensation Commission - third defendant

FILE NUMBER(S): SC 30152/08

COUNSEL: D Epstein (plaintiff)
J W Dodd ( defendants)

LOWER COURT JURISDICTION: Medical Appeal Panel

LOWER COURT DATE OF DECISION: 5 November 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Price J

10 July 2009

30152/08 Zeineddine v Matar & 2 Ors
JUDGMENT

1 HIS HONOUR: On 5 November 2008, a Medical Appeal Panel (MAP) determined under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) that the Medical Assessment Certificate (MAC) issued by an approved medical specialist (AMS) on 16 July 2008 in respect of Jawdat Zeineddine, the plaintiff, should be confirmed. The plaintiff now seeks a declaration under s 69 of the Supreme Court Act 1970 that the decision of the MAP involved jurisdictional error that was beyond power and an error on the face of the record. Orders are sought that the decision be quashed and that the Registrar of the Workers Compensation Commission (the Registrar) and the MAP carry…

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: [2009] NSWSC 646
Decision Date: 10 July 2009

CaseChat Overview and Summary

The respondents, Zeineddine and Matar, sought judicial review of a decision made by the Medical Appeal Panel, which had assessed the respondents' workers' compensation claims. The respondents argued that the Panel had made errors in their assessment of the permanent impairment caused by their injuries. The primary legal issues were whether there was a demonstrable error in the medical assessment certificate of an approved medical specialist, whether matters not presented to the Panel could be argued on judicial review, and whether the Panel had correctly exercised its jurisdiction. The court had to consider whether the Panel had erred in correcting the assessment of permanent impairment and the meaning of "proportion" as it relates to s 323(1) of the Workplace Injury Management and Workers Compensation Act 1998.

The court examined the nature of the Panel's decision-making process and whether it had correctly applied the relevant legislation. The respondents contended that the Panel had not properly considered the totality of the evidence and had incorrectly calculated the proportion of permanent impairment. The court noted that the Panel's role was to review the medical assessment certificate and determine if there was a demonstrable error. The court held that the Panel had the authority to correct errors in the assessment certificate, provided that the correction was proportionate and did not involve making a new assessment. The court found that the Panel had not made a demonstrable error in correcting the assessment of permanent impairment, as the correction was proportionate and based on the evidence presented.

In reaching its decision, the court emphasised that the Panel's role was to review the medical assessment certificate, not to conduct a new assessment. The court also clarified the meaning of "proportion" in s 323(1) of the Act, stating that it referred to the relationship between the degree of permanent impairment and the extent of the correction made by the Panel. The court held that the Panel had correctly exercised its jurisdiction and that the respondents' claims for judicial review were dismissed. The court found that the Panel's decision was not tainted by any demonstrable error, and that the correction made to the assessment certificate was proportionate and based on the evidence presented. The court's decision was that the respondents' application for judicial review was dismissed, with no orders for costs.

Orders