D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201

D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201

The Review Panel expressly considered whether there was a component of left shoulder restriction due to radiating pain from the neck and whether there was impairment based on Nguyen. Reading the reasons as a whole, the Panel did not confine itself to direct injury and did not ask the wrong question. The appellant's no-evidence complaint required examination and interpretation of medical and physiotherapy records beyond the face of the record, and therefore did not establish error of law on the face of the record. No jurisdictional error or error of law on the face of the record was shown, so the primary judge was correct to dismiss the summons.

Jurisdiction
Australia
Judgment Date
16 August 2019
Procedural Posture
Administrative Law; Judicial Review of a Medical Review Panel Assessment Under the Motor Accidents Compensation Act 1999 (nsw) / Appeal to the New South Wales Court of Appeal From Dismissal of a Summons Under S 69 of the Supreme Court Act 1970 (nsw)
Outcome
Appeal dismissed with costs.
Legal Topics
['medical Review Panel' 'permanent Impairment Assessment' 'jurisdictional Error' 'procedural Fairness' 'error of Law on the Face of the Record' 'no Evidence Ground' 'non Economic Loss Threshold']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['medical Review Panel' 'permanent Impairment Assessment' 'jurisdictional Error' 'procedural Fairness' 'error of Law on the Face of the Record' 'no Evidence Ground' 'non Economic Loss Threshold']

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Procedural Posture

Administrative Law; Judicial Review of a Medical Review Panel Assessment Under the Motor Accidents Compensation Act 1999 (nsw) / Appeal to the New South Wales Court of Appeal From Dismissal of a Summons Under S 69 of the Supreme Court Act 1970 (nsw)

Legal Issues

  1. 1 ['Whether the Medical Review Panel failed to address an argument properly before it that left shoulder impairment resulted from referred pain from the accepted cervical spine injury.' 'Whether the Medical Review Panel directed its attention to the wrong question by focusing on injury to the left shoulder rather than impairment caused directly or consequentially by the motor accident.' 'Whether findings that left shoulder pain and restriction did not present until March 2011 were findings for which there was no evidence and constituted error of law on the face of the record.']

Ratio Decidendi

The Review Panel expressly considered whether there was a component of left shoulder restriction due to radiating pain from the neck and whether there was impairment based on Nguyen. Reading the reasons as a whole, the Panel did not confine itself to direct injury and did not ask the wrong question. The appellant's no-evidence complaint required examination and interpretation of medical and physiotherapy records beyond the face of the record, and therefore did not establish error of law on the face of the record. No jurisdictional error or error of law on the face of the record was shown, so the primary judge was correct to dismiss the summons.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' 'Appellant to pay the costs of the appeal.']