Johnson v NSW Workers Compensation Commission [2019] NSWSC 347

Johnson v NSW Workers Compensation Commission [2019] NSWSC 347

The Medical Appeal Panel erred in conducting an apportionment between two injuries when its proper task under the Workers Compensation legislation was to determine whether the employment in question caused or materially contributed to the whole person impairment as clinically assessed, and not to divide impairment between injuries unless permitted by s 323 of the 1998 Act. As a result, the Panel's certificate was vitiated by error, and the plaintiff was entitled to relief.

Parties
Plaintiff: Elaine Johnson; First Defendant: NSW Workers Compensation Commission; Second Defendant: Glenn Capel, Professor Nicholas Glozier, Dr Julian Parmegiani as members of the Medical Appeal Panel of the Workers Compensation Commission of NSW; Third Defendant: Secretary NSW Department of Education
Jurisdiction
Australia
Judgment Date
03 May 2019
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Application granted; decision quashed; matter remitted; costs awarded to plaintiff.
Legal Topics
Judicial Review, Permanent Impairment Assessment, Apportionment, Medical Appeal Panel
Administrative Law Workers Compensation Judicial Review Permanent Impairment Assessment Apportionment Medical Appeal Panel

Case Brief

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Parties

Elaine Johnson

Plaintiff

NSW Workers Compensation Commission

First Defendant

Glenn Capel, Professor Nicholas Glozier, Dr Julian Parmegiani as members of the Medical Appeal Panel of the Workers Compensation Commission of NSW

Second Defendant

Secretary NSW Department of Education

Third Defendant

Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 Whether the Medical Appeal Panel was correct to apportion whole person impairment between different injuries
  2. 2 Whether the Medical Appeal Panel had to identify and state its diagnosis of the plaintiff's condition

Ratio Decidendi

The Medical Appeal Panel erred in conducting an apportionment between two injuries when its proper task under the Workers Compensation legislation was to determine whether the employment in question caused or materially contributed to the whole person impairment as clinically assessed, and not to divide impairment between injuries unless permitted by s 323 of the 1998 Act. As a result, the Panel's certificate was vitiated by error, and the plaintiff was entitled to relief.

Court Disposition

Application granted; decision quashed; matter remitted; costs awarded to plaintiff.

Orders

  • Pursuant to s 69 of the Supreme Court Act 1970, the decision of the second defendant made on 18 July 2018 is quashed.
  • Order that the matter be remitted to the first defendant to be dealt with in accordance with law.