Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365

Supreme Court New South Wales

Medium Neutral Citation: Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365 Hearing dates: 20 March 2013 Decision date: 18 April 2013 Jurisdiction: Common Law Before: Schmidt J Decision: (1) Quash the whole of the decision made by the Second Defendant, the Appeal Panel of the Workers Compensation Commission of New South Wales, on 29 August 2012 pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998, and the medical assessment certificate issued with the decision, which stated that Mr Elcheikh has whole person impairment of 12%. (2) Declare that the decision and the medical assessment certificate are void. (3) Remit the matter to the third defendant for the purpose of constituting an Appeal Panel under s 328(1) of the Workplace Injury Management and Workers Compensation Act to determine the matter according to law. (4) Costs of the appeal to Mr Elcheikh as agreed or assessed. (5) Exhibits may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. Catchwords: APPEAL - appeal against Workers Compensation Commission Appeal Panel decision - Court's power to make orders sought - legislative scheme - arbitrator's decision - medical specialist's decision - Appeal Panel's decision - whether Appeal Panel's reasons inadequate - whether there was jurisdictional error - degree of impairment - failure to determine degree of impairment due to pre-existing condition - specific injury - whether specific injury needed for diagnosis related estimate category - failure to consider extent of resulting impairment - failure to consider whether pre-existing condition contributed to impairment - failure to consider whether proportion of impairment was due to pre-existing condition - whether Appeal Panel failed to address s 323(2) - orders Legislation Cited: Supreme Court Act 1970 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 WorkCover Legislation Amendment Act 1996 (repealed) Cases Cited: Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Cole v Wenaline Pty Limited [2010] NSWSC 78 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Hanna v Department of Immigration, Multicultural and Indigenous Affairs [2004] NSWCA 275 Siddik v WorkCover Authority of NSW [2008] NSWCA 116; (2008) 6 DDCR 228 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Zuanic v Gypro-Tech (Australia) Pty Limited (in liq) [2006] NSWSC 739; (2006) 66 NSWLR 206 Category: Principal judgment Parties: Zain Elcheikh (Plaintiff) Diamond Formwork (NSW) Pty Ltd (in liquidation) Bruce McManamey, Dr Brian Noll, Dr Tommasino Mastroianni as members of the Appeal Panel of the Workers Compensation Commission of New South Wales (Second Defendant) Registrar of the Workers Compensation Commission of New South Wales (Third Defendant) Representation: Counsel: Ms M Allars with Mr L Morgan (Plaintiff) Mr C Jackson (First Defendant) Solicitors: C&M Lawyers (Plaintiff) Moray & Agnew (First Defendant) IV Knight, Crown Solicitor's Officer (Second Defendant) File Number(s): 2012/318123 Publication restriction: None Decision under appeal Date of Decision: 2012-08-29 00:00:00 Before: Appeal Panel Arbitrator: Bruce McManamey Approved Medical Specialist: Dr Brian Noll Approved Medical Specialist: Dr Tommasino Mastroianni File Number(s): M1-002330/12