Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586

Supreme Court New South Wales

Medium Neutral Citation: Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586 Hearing dates: 14 November 2024 Date of orders: 11 December 2024 Decision date: 11 December 2024 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Direct that the names of the persons constituting the Medical Appeal Panel be deleted as parties to the proceedings and the second defendant be identified as the "Medical Appeal Panel". (2) Set aside the determination of the Medical Appeal Panel of 13 November 2023. (3) Set aside the certificate issued by the Commission on 13 December 2023. (4) Direct that the President or his delegate determine whether to: (a) grant the claimant's application for further consideration of the claim for scarring; (b) if not, grant the claimant leave to amend his appeal to include the demonstrable error in that regard; and (c) refer the medical dispute to a differently constituted medical appeal panel to be determined according to law. Catchwords: ADMINISTRATIVE LAW – judicial review – determination of medical appeal panel – claim for workers' compensation lump sum payment – answering application of request for referral for reconsideration – response to application not within functions of the appeal panel – determination of deduction for pre-existing injury – availability turned on issue of statutory construction – error of law on face of record (reasons of appeal panel) WORKERS' COMPENSATION – medical dispute – demonstrable error – failure to address part of dispute (scarring) – request for reconsideration not determined – request referred to appeal panel – scarring not part of appeal – calculation of deduction for pre-existing injury – injury caused by nature and conditions of work – determining date of injury occurring by a gradual process Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, Div 1 Supreme Court Act 1970 (NSW), ss 69, 75 Workers Compensation Act 1987 (NSW), ss 4,15, 16 66, 68B Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 293, 323, 327, 328. 329 Cases Cited: Cole v Wenaline Pty Ltd [2010] NSWSC 78 Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304 Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38 Skates v Hills Industries Ltd [2021] NSWCA 142 Texts Cited: New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment (State Insurance Regulatory Authority, 4th ed, 1 March 2021) American Medical Association's Guides to the Evaluation of Permanent Impairment (5th ed) Category: Principal judgment Parties: William Oswell (Plaintiff) Sublime Install Pty Ltd (First Defendant) President of the Personal Injury Commission of New South Wales (Second Defendant) Medical Appeal Panel (Third Defendant) Representation: Counsel: K Morgan SC / B McManamey (Plaintiff) J Hart (First Defendant)