Coles Supermarkets Australia Pty Ltd v Gandhi [2023] NSWSC 1251

Supreme Court New South Wales

Medium Neutral Citation: Coles Supermarkets Australia Pty Ltd v Gandhi [2023] NSWSC 1251 Hearing dates: 24 October 2023 Date of orders: 17 November 2023 Decision date: 17 November 2023 Jurisdiction: Common Law Before: Davies J Decision: 1. Quash the whole of the decision made by the third defendant on 5 April 2023 and the Medical Assessment Certificate dated 4 April 2023. 2. Remit the matter to the second defendant for referral to a differently constituted Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for redetermination according to law. Catchwords: WORKERS COMPENSATION – claim for compensation – where defendant suffered injury to lumbar spine – where defendant had pre-existing pathology of the lumbar spine – "medical dispute" over degree of whole person impairment ("WPI") – where initial Medical Assessor allowed deduction of one third for impairment of the lumbar spine due to pre-existing condition – initial Medical Assessment Certificate contained demonstrable error – matter referred to Medical Appeal Panel ("MAP") – where MAP held that proportion for deduction could not be determined - where MAP allowed deduction of one tenth for impairment of the lumbar spine applying s 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where no reasons were given for MAP's conclusion that proportion of impairment due to pre-existing condition could not be determined – held MAP erred by applying subs (2) without reasons sufficient to see if there was an error of law – lumbar spine determination quashed WORKERS COMPENSATION – medical assessment – application of Workers Compensation Guidelines – where defendant had gastrointestinal issues he attributed to the use of medications post-surgery – where evidence suggested three matters might have contributed to gastroesophageal reflux – where MAP simply adopted doctor's findings and made no further comments – whether reasons of the doctor adequately identified a "sign" and a "symptom" to satisfy the Guidelines for upper digestive tract impairment – held reasons inadequate to justify adopting doctor's assessment – doctor does not adequately consider competing contentions about cause of the ongoing impairment – assessment concerning the digestive tract quashed ADMINISTRATIVE LAW – review of Medical Appeal Panel decision – inadequacy of reasons – error of law – decision of Medical Appeal Panel quashed – matter to be remitted to a differently constituted Appeal Panel Legislation Cited: Supreme Court Act 1970 (NSW) s 69 Workers Compensation Act 1987 (NSW) s 66 Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 319, 323, 327, 328 Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Cole v Wenaline Pty Limited [2010] NSWSC 78 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322 Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365 Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 795; [2001] NSWCA 305 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 272 Ryder v Sundance Bakehouse [2015] NSWSC 526 Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: Nil Category: Principal judgment Parties: Coles Supermarkets Australia Pty Ltd (Plaintiff) Rahulkumar Gandhi (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) Member Catherine McDonald, Dr Mark Burns and Dr John Garvey as an Appeal Panel constituted pursuant to section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant) Representation: Counsel: S J McMahon (Plaintiff) J Turnbull SC & T Hickey (First Defendant) Submitting appearances (Second & Third Defendants)