Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125

Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125

The Appeal Panel, in filling gaps in the Medical Assessor's reasoning and failing to refer explicitly to the requirement for step-by-step consideration of Table 17.1, committed jurisdictional error and error on the face of the record. Therefore, the certificate and statement of reasons must be set aside and the matter remitted for proper determination by the Personal Injury Commission.

Parties
Plaintiff: Damien Windley; First Defendant: Workers Compensation Nominal Insurer; Second Defendant: The President of the Personal Injury Commission of New South Wales; Third Defendant: A Medical Appeal Panel constituted by Members John Harris, Dr Mark Burns and Dr Brian Noll; Fourth Defendant: A Medical Assessor constituted by Dr Yu-Key Ho
Jurisdiction
Australia
Judgment Date
03 September 2021
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application allowed in part; Medical Appeal Panel decision set aside; matter remitted for re-determination; costs ordered against first defendant
Legal Topics
Judicial Review, Personal Injury Commission, Medical Appeal Panel, Complex Regional Pain Syndrome, Jurisdictional Error, Error on the Face of the Record
Administrative Law Workers Compensation Judicial Review Personal Injury Commission Medical Appeal Panel Complex Regional Pain Syndrome Jurisdictional Error Error on the Face of the Record

Case Brief

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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

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the Appeal Panel committed jurisdictional error by filling gaps in the Medical Assessor's reasons
  2. 2 Whether the Appeal Panel failed to properly apply ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) regarding fresh evidence
  3. 3 Whether the Medical Assessor failed to comply with the obligation to provide sufficient reasons under Table 17.1 of the Guidelines

Ratio Decidendi

The Appeal Panel, in filling gaps in the Medical Assessor's reasoning and failing to refer explicitly to the requirement for step-by-step consideration of Table 17.1, committed jurisdictional error and error on the face of the record. Therefore, the certificate and statement of reasons must be set aside and the matter remitted for proper determination by the Personal Injury Commission.

Court Disposition

Application allowed in part; Medical Appeal Panel decision set aside; matter remitted for re-determination; costs ordered against first defendant

Orders

  • A declaration that the certificate and statement of reasons of the third defendant dated 4 February 2021 is set aside.
  • The matter is remitted to the President of the Personal Injury Commission of New South Wales to be determined according to law.