Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616

Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616

Guideline 11.10 of the Workers Compensation Guidelines is inconsistent with s 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) because, by excluding consideration of asymptomatic pre-existing conditions as contributing to impairment, it conflicts with the statutory requirement to deduct for any proportion of impairment caused by such conditions. As delegated legislation, Guideline 11.10 cannot override the Act; thus, the Appeal Panel did not err in not applying that aspect of the guideline. Procedural fairness was denied to the plaintiff insofar as the Appeal Panel varied the 'treatment effect' allowance without notice.

Parties
Plaintiff: David Marks; First Defendant: Secretary, Department of Communities and Justice; Second Defendant: Appeal Panel: John Wynyard, Dr Julian Parmegiani, Dr Michael Hong; Third Defendant: Registrar, Workers Compensation Commission of NSW
Jurisdiction
Australia
Judgment Date
04 June 2021
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application dismissed, except in relation to procedural fairness concerning the 'treatment effect'.
Legal Topics
Reviewable Error of Law, Jurisdictional Error, Guidelines and Statutory Consistency, Permanent Impairment Assessment, Deduction for Pre Existing Condition, Delegated Legislation, Procedural Fairness
Administrative Law Statutory Interpretation Workers Compensation Reviewable Error of Law Jurisdictional Error Guidelines and Statutory Consistency Permanent Impairment Assessment Deduction for Pre Existing Condition +2 more

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Parties

David Marks

Plaintiff

Secretary, Department of Communities and Justice

First Defendant

Appeal Panel: John Wynyard, Dr Julian Parmegiani, Dr Michael Hong

Second Defendant

Registrar, Workers Compensation Commission of NSW

Third Defendant

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether Guideline 11.10 of the Workers Compensation Guidelines is inconsistent with s 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)
  2. 2 Effect of any inconsistency between guideline and Act
  3. 3 Whether the Appeal Panel made error of law by not applying the guideline

Ratio Decidendi

Guideline 11.10 of the Workers Compensation Guidelines is inconsistent with s 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) because, by excluding consideration of asymptomatic pre-existing conditions as contributing to impairment, it conflicts with the statutory requirement to deduct for any proportion of impairment caused by such conditions. As delegated legislation, Guideline 11.10 cannot override the Act; thus, the Appeal Panel did not err in not applying that aspect of the guideline. Procedural fairness was denied to the plaintiff insofar as the Appeal Panel varied the 'treatment effect' allowance without notice.

Court Disposition

Application dismissed, except in relation to procedural fairness concerning the 'treatment effect'.

Orders

  • Declaration that, to the extent the Appeal Panel varied the allowance made by the approved medical specialist for the 'treatment effect', the plaintiff was denied procedural fairness and the decision is void and of no effect.
  • Order that the Appeal Panel's decision, to the extent it varied the allowance for the 'treatment effect', be set aside.