Pereira v Siemens Ltd [2015] NSWSC 1133

Pereira v Siemens Ltd [2015] NSWSC 1133

The Medical Appeal Panel and the AMS committed jurisdictional error by making a deduction for pre-existing injury based on an assumption rather than fact; there was insufficient evidence that the applicant's hearing loss attributable to pre-NSW employment contributed to the present impairment, and the methodology of direct proportional deduction was unsupported by the evidence. The Panel also failed to consider whether a 10% deduction should apply under s 323(2) due to difficulty or cost of assessment.

Jurisdiction
Australia
Judgment Date
21 August 2015
Procedural Posture
Judicial Review / Final Judgment After Hearing
Outcome
Decision of the Medical Appeal Panel quashed; matter remitted for reconsideration; first defendant to pay costs.
Legal Topics
['industrial Deafness' 'medical Assessment Panels' 'deduction for Pre Existing Injury' 'whole Person Impairment' 'administrative Error' 'jurisdictional Error']
['administrative Law' 'workers Compensation' 'judicial Review'] ['industrial Deafness' 'medical Assessment Panels' 'deduction for Pre Existing Injury' 'whole Person Impairment' 'administrative Error' 'jurisdictional Error']

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 / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Medical Appeal Panel erred in making a deduction for pre-existing injury under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 without adequate evidence' 'Whether the methodology of proportionate time for deduction under s 323 was appropriate in the absence of evidence' 'Whether failure to consider whether the deduction was too difficult or costly to determine warranted application of s 323(2)']

Ratio Decidendi

The Medical Appeal Panel and the AMS committed jurisdictional error by making a deduction for pre-existing injury based on an assumption rather than fact; there was insufficient evidence that the applicant's hearing loss attributable to pre-NSW employment contributed to the present impairment, and the methodology of direct proportional deduction was unsupported by the evidence. The Panel also failed to consider whether a 10% deduction should apply under s 323(2) due to difficulty or cost of assessment.

Court Disposition

Decision of the Medical Appeal Panel quashed; matter remitted for reconsideration; first defendant to pay costs.

Orders

  • ['Quash the whole of the decision made by the Medical Appeal Panel of the Workers Compensation Commission of NSW appointed pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 made on 28 January 2015, and the Medical Assessment Certificate issued with the decision.' 'Declare,...