Mifsud v Pitador Excavations Pty Limited t/as JD Concrete Pty Ltd [2022] NSWSC 1010

Mifsud v Pitador Excavations Pty Limited t/as JD Concrete Pty Ltd [2022] NSWSC 1010

Although the Appeal Panel appeared to focus too closely on the wording of the referral and may have failed to address the plaintiff's alternative argument about assessment under Chapter 2 of the SIRA guidelines and Chapter 16 of AMA5, any such errors were not material. Looking beyond the referral to the parties' competing claims, the only medical basis advanced for including the right elbow and wrist restrictions as impairment resulting from the work injury was CRPS Type 2, which the AMS did not diagnose and which was not challenged on appeal. There was no evidence before the Appeal Panel supporting an alternative causal pathway, such as a past CRPS condition causing permanent loss of...

Jurisdiction
Australia
Judgment Date
29 July 2022
Procedural Posture
Proceedings for Judicial Review of a Decision of an Appeal Panel Concerning a Medical Assessment Certificate for Workers Compensation Permanent Impairment / Final Judgment After Hearing
Outcome
Proceedings for judicial review dismissed.
Legal Topics
['jurisdictional Error' 'medical Assessment Certificate' 'appeal Panel Review' 'whole Person Impairment' 'complex Regional Pain Syndrome' 'scope of Medical Dispute Referred for Assessment' 'materiality of Error']
['administrative Law' 'workers Compensation'] ['jurisdictional Error' 'medical Assessment Certificate' 'appeal Panel Review' 'whole Person Impairment' 'complex Regional Pain Syndrome' 'scope of Medical Dispute Referred for Assessment' 'materiality of Error']

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Procedural Posture

Proceedings for Judicial Review of a Decision of an Appeal Panel Concerning a Medical Assessment Certificate for Workers Compensation Permanent Impairment / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Appeal Panel made jurisdictional error or an error of law on the face of the record by holding that assessment by range of motion was only available if CRPS was found.' 'Whether the Appeal Panel erred by treating the referral as restricting assessment of the right elbow and wrist to impairment resulting from CRPS Type 2.' "Whether the Appeal Panel asked the wrong question by focusing on the terms of the referral rather than the medical dispute identified by the parties' competing claims." 'Whether any error by the Appeal Panel was material so as to justify judicial review relief.']

Ratio Decidendi

Although the Appeal Panel appeared to focus too closely on the wording of the referral and may have failed to address the plaintiff's alternative argument about assessment under Chapter 2 of the SIRA guidelines and Chapter 16 of AMA5, any such errors were not material. Looking beyond the referral to the parties' competing claims, the only medical basis advanced for including the right elbow and wrist restrictions as impairment resulting from the work injury was CRPS Type 2, which the AMS did not diagnose and which was not challenged on appeal. There was no evidence before the Appeal Panel supporting an alternative causal pathway, such as a past CRPS condition causing permanent loss of...

Court Disposition

Proceedings for judicial review dismissed.

Orders

  • ['Proceedings for judicial review is dismissed.' "The plaintiff is to pay the First Defendant's costs of the proceedings."]