Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053

Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053

The Appeal Panel committed jurisdictional error by issuing a Medical Assessment Certificate assessing 10% whole person impairment for the left lower extremity, a figure not permitted by the Guides or the correct tables as required by law, warranting the certificate and reasons to be set aside and the matter remitted for fresh assessment.

Parties
Plaintiff: Peter Drosd; First Defendant: Workers Compensation Nominal Insurer; Second Defendant: The Registrar of the Workers Compensation Commission of NSW; Third Defendant: Medical Appeal Panel
Jurisdiction
Australia
Judgment Date
05 August 2016
Procedural Posture
Workers' Compensation Appeal / Judgment on Summons Seeking Judicial Review
Outcome
Certificate and Statement of Reasons of Medical Appeal Panel set aside for jurisdictional error; matter remitted to Registrar for referral; plaintiff awarded costs.
Legal Topics
Medical Assessment Certificate, Jurisdictional Error, Assessment of Permanent Impairment, Pre Existing Injury Deduction, Statutory Interpretation
Workers' Compensation Administrative Law Medical Assessment Certificate Jurisdictional Error Assessment of Permanent Impairment Pre Existing Injury Deduction Statutory Interpretation

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Parties

Peter Drosd

Plaintiff

Workers Compensation Nominal Insurer

First Defendant

The Registrar of the Workers Compensation Commission of NSW

Second Defendant

Medical Appeal Panel

Third Defendant

Procedural Posture

Workers' Compensation Appeal / Judgment on Summons Seeking Judicial Review

Legal Issues

  1. 1 Whether the Medical Appeal Panel erred in its assessment of whole person impairment under the Workplace Injury Management and Workers Compensation Act 1998
  2. 2 Whether the Appeal Panel applied incorrect tables and criteria as required by the WorkCover Guides
  3. 3 Whether the Appeal Panel was required to conduct a physical re-examination of the plaintiff

Ratio Decidendi

The Appeal Panel committed jurisdictional error by issuing a Medical Assessment Certificate assessing 10% whole person impairment for the left lower extremity, a figure not permitted by the Guides or the correct tables as required by law, warranting the certificate and reasons to be set aside and the matter remitted for fresh assessment.

Court Disposition

Certificate and Statement of Reasons of Medical Appeal Panel set aside for jurisdictional error; matter remitted to Registrar for referral; plaintiff awarded costs.

Orders

  • Order that the Certificate and Statement of Reasons issued by the third defendant on 6 October 2015 be set aside as being contrary to law.
  • Order that the matter be remitted to the second defendant for consideration and decision as to whom a referral ought be made for an assessment of the left lower extremity impairment of the plaintiff in accordance with the law.