Sakr v Merrylands Christian Preschool Association Inc [2022] NSWSC 768

Sakr v Merrylands Christian Preschool Association Inc [2022] NSWSC 768

The medical dispute between the parties was not confined to whether the plaintiff suffered from CRPS. It was the degree of permanent impairment as a result of the accepted 12 September 2013 workplace injury, described as a soft tissue injury to the plaintiff's right upper limb. The permanent impairment claim identified the right upper extremity and CRPS was a contested diagnosis or pain syndrome developing after injury, not the injury itself. The plaintiff did not waive the broader claim by failing to object to the referral wording, and the Commission Arbitrator did not determine or limit the injury to CRPS. It was therefore open to the AMS, after finding that the diagnostic criteria for...

Jurisdiction
Australia
Judgment Date
16 June 2022
Procedural Posture
Judicial Review Under S 69 of the Supreme Court Act 1970 of a Medical Appeal Panel Decision and Consequential Certificate of Determination in a Workers Compensation Permanent Impairment Dispute / Final Hearing of Further Amended Summons; Decision and Orders Made
Outcome
Plaintiff succeeded; the Medical Appeal Panel decision and the Certificate of Determination were set aside and the matter was remitted to the President of the Personal Injury Commission of New South Wales to be dealt with according to law.
Legal Topics
['medical Assessment' 'medical Dispute' 'approved Medical Specialist' 'permanent Impairment' 'scope of Referral' 'error of Law on the Face of the Record' 'jurisdictional Error' 'complex Regional Pain Syndrome']
['workers Compensation' 'administrative Law'] ['medical Assessment' 'medical Dispute' 'approved Medical Specialist' 'permanent Impairment' 'scope of Referral' 'error of Law on the Face of the Record' 'jurisdictional Error' 'complex Regional Pain Syndrome']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review Under S 69 of the Supreme Court Act 1970 of a Medical Appeal Panel Decision and Consequential Certificate of Determination in a Workers Compensation Permanent Impairment Dispute / Final Hearing of Further Amended Summons; Decision and Orders Made

Legal Issues

  1. 1 ['Whether the Medical Appeal Panel made an error of law on the face of the record or jurisdictional error in finding that the Approved Medical Specialist assessed matters outside the terms of the referral by assessing the right upper extremity in the absence of a diagnosis of CRPS.' 'Whether the scope of the medical dispute referred for assessment was confined by the referral document to CRPS or extended to the degree of permanent impairment resulting from the accepted workplace injury to the right upper limb.' "Whether the Medical Appeal Panel erred in its reasoning about paragraph 1.12 of the NSW Compensation Guidelines and the AMS's assessment of loss of motion in the right upper extremity."]

Ratio Decidendi

The medical dispute between the parties was not confined to whether the plaintiff suffered from CRPS. It was the degree of permanent impairment as a result of the accepted 12 September 2013 workplace injury, described as a soft tissue injury to the plaintiff's right upper limb. The permanent impairment claim identified the right upper extremity and CRPS was a contested diagnosis or pain syndrome developing after injury, not the injury itself. The plaintiff did not waive the broader claim by failing to object to the referral wording, and the Commission Arbitrator did not determine or limit the injury to CRPS. It was therefore open to the AMS, after finding that the diagnostic criteria for...

Court Disposition

Plaintiff succeeded; the Medical Appeal Panel decision and the Certificate of Determination were set aside and the matter was remitted to the President of the Personal Injury Commission of New South Wales to be dealt with according to law.

Orders

  • ['The decision of the second defendant made on 30 November 2020 be set aside.' 'The Certificate of Determination of an Arbitrator of the Workers Compensation Commission made on 5 January 2021 be set aside.' 'The matter be remitted to the third defendant to be dealt with in accordance with law.' "The first defendant...