Hearne v Spamil Discretionary Trust [2018] NSWSC 1631

Supreme Court New South Wales

Medium Neutral Citation: Hearne v Spamil Discretionary Trust [2018] NSWSC 1631 Hearing dates: 4 April 2018 Decision date: 30 October 2018 Jurisdiction: Common Law Before: Hamill J Decision: (1) Quash the decision of the Medical Appeal Panel dated 26 June 2017.

(2) Remit the matter to the Registrar of the Workers Compensation Commission for referral to a differently constituted panel to determine according to law the appeal under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

(3) The first defendant is to pay the Plaintiff's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – workers compensation – error of law on the face of the record – decision of Medical Appeal Panel – beneficial construction of reasons of administrative decision maker – maximum medical improvement – whether plaintiff's injury unlikely to improve – long term injury to cervical spine – where surgery proposed by neurologist – whether Appeal Panel failed to take into account – where medical specialist asked to reconsider WPI in light of proposed surgery – pithy response – where different conclusions open on the evidence – need to explain conclusion reached 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, 326, 327, 328 and 329 Cases Cited: Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 Woolworths Limited v Michelle Howarth [2015] NSWSC 1624 Texts Cited: American Medical Association's Guides to the Evaluation of Permanent Impairment (5th ed, 2002, American Medical Association) NSW workers compensation guidelines for the Evaluation of Permanent Impairment (4th ed, 2015, NSW government) Category: Principal judgment Parties: Kerri-Anne Hearne (Plaintiff) The Trustee for Spamil Discretionary Trust (c/- EML Workers Insurance NSW) (First defendant) Registrar of the Workers Compensation Commission of New South Wales (Second defendant) Ross Bell, Dr Brian Noll and Dr Ross Mellick, as Members of the Appeal Panel of the Workers Compensation Commission of New South Wales (Third defendant) Representation: Counsel: B McManamey (Plaintiff) P Stockley (First defendant)