Pombinho v Coca-Cola Europacific Partners API Pty Ltd

The Appeal Panel Decision

1. The Appeal Panel set out the provisions of the 1998 Act, the grounds of appeal and the basis upon which the Appeal Panel exercised jurisdiction, namely, the Personal Injury Commission Rules 2021 (NSW), r 128 and the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 (hereinafter "the Guidelines") and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
2. The decision then set out the circumstances that the plaintiff developed primary psychological injury in the course of his employment and the terms of the Certificate of Determination - Consent Orders of 19 August 2022 issued by Member Snell. The Decision then set out the circumstance that Member Snell referred the matter to a Medical Assessor, Dr Verma, who, on 21 September 2022, examined the plaintiff through video link. As stated, the Medical Assessor assessed WPI at 24% and that was reiterated in the Appeal Panel Decision.
3. After noting that Coca-Cola did not seek a further examination of the plaintiff but had confirmed that this was a matter for the Appeal Panel, and after a preliminary review, the Appeal Panel determined that it was necessary for the plaintiff to undergo a further examination. The Appeal Panel determined the need for further medical examination on the basis that there was "insufficient evidence on which to make a determination". [1] However, at the point in time when this occurred, it does not seem that the Appeal Panel had determined the need for a new determination. Nothing turns on that timing in the proceedings.
4. The Appeal Panel then recited the evidence that was before them, including the fact that Dr Glozier, a Member of the Panel, conducted an examination of the plaintiff on 1 March 2023 and reported to the Panel. The Decision of the Appeal Panel then summarised the submissions of the parties and summarised the principles and law applicable to the role of the Appeal Panel.
5. In that summary the Appeal Panel referred to s 328 of the 1998 Act, the judgment of the Court of Appeal in Campbelltown City Council v Vegan, [2] s 327(2) of the 1998 Act and New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales. [3] The decision of the Appeal Panel then extracts the evidence upon which the Medical Assessor relied and which was noted in the reasons of the Medical Assessor.
6. The Appeal Panel also referred to, and extracted, part of the reasons of the Medical Assessor relating to or under the heading of "Details of any previous or subsequent accidents, injuries or conditions". The extract was in the following terms: "He reported that we were working in Foxtel in 2013 when there were 2 guys who were stealing and wanted him to steal as well. They bully him and accused him of stealing. There was an enquiry and it was proved that Mr Pombinho wasn't involved in any such activities. But he developed mental health issues and was on antidepressants as he was depressed. He continued taking the antidepressant, probably Lovan (he wasn't sure of the medication) and continued it. He was on Lovan when the incident at Coca Cola happened. He reported that he was mentally fit and fine when he started working with Coca-Cola …. General Health: … He also reported that 'bad knees' have been a problem and he was attending a Physiotherapist earlier …." Other extracts of the Medical Assessment Certificate reasons were included in the Decision of the Appeal Panel.
7. The Appeal Panel repeated the submission of Coca-Cola in relation to Ground 1, then referred to s 65A of the 1987 Act which provides that "no permanent impairment assessment is to be made of secondary psychiatric and psychological impairment" (as summarised by the Appeal Panel). [4]
8. The Decision notes that the Appeal Panel noted that Dr Bisht made a deduction for secondary psychiatric injury in his Report of 9 September 2021. Dr Bisht's view was that the cause of the secondary injury was the knee and shoulder injury.
9. The Decision notes that the Appeal Panel "agreed with the appellant that there was no consideration by the Medical Assessor as to whether [the plaintiff] had a secondary psychological injury resulting from the concurrent physical injuries to the knees and right arm …". [5]
10. The Decision then says: "The Appeal Panel considered that the Medical Assessor erred in not considering or adequately considering the issue of secondary injury and if there was [sic] a secondary injury whether any WPI resulted from it." [6]
11. Thus, the Appeal Panel, according to the Decision, upheld Ground 1 of the appeal.
12. The second ground of appeal to the Appeal Panel is that the Medical Assessor failed to consider evidence or material upon which Coca-Cola relied. The Decision notes that the list of documents to which the Certificate refers did not include the Reply by Coca-Cola nor the material in the Reply except the report of Dr Bisht. No reference was made in the reasons granting the Certificate to the clinical records from Hassall Grove Medical Centre.
13. The Decision records that the Appeal Panel accepted that the Medical Assessor was not required to refer to all of the relevant material but noted that the Medical Assessor referred to the reports of Dr Bisht and Dr Akkerman but did not refer to the clinical notes and records from the Hassall Grove Medical Centre. The Decision also records that the Appeal Panel considered that the clinical notes and records which were not the subject of reference were "relevant and significant". [7]
14. As a consequence of that opinion, the Decision notes that the "Appeal Panel considered that the Medical Assessor made a demonstrable error in that she failed to consider the contents of the Reply and AALD." [8] Those documents go to the presence of a pre-existing condition.
15. After reiterating the appellant's submission, referred to as Ground 3, being that the Medical Assessor failed appropriately to consider the impact of the physical injuries to the plaintiff, including medication that may have been a consequence of those conditions, the Decision records that the Appeal Panel found "that there was no consideration by the Medical Assessor as to whether [the plaintiff] had a secondary psychological injury resulting from the concurrent physical injuries to the knees and right arm and, if so, whether there was [sic] any WPI resulting from such an injury". [9]
16. The same issues were repeated, the necessary changes being made, in relation to the consideration of the effect of COVID-19 on the PIRS and took the view that COVID-19 was also not considered appropriately. As a consequence, Ground 2 was upheld.
17. Lastly, the Decision deals with the ground of appeal relating to the s 323 deduction. This is a reference to s 323 of the 1998 Act and is the culmination of the other grounds.
18. After reiterating the submission of Coca-Cola and reciting and/or summarising what was said to be the relevant provisions of the 1998 Act and the Guidelines, the Decision refers to the approach to be taken by reference to the judgment of Schmidt J in Cole v Wenaline Pty Ltd. [10]
19. The Court notes that in Cole, supra, the injury concerned was physical, and therefore governed by different provisions of the 1998 Act and the Guidelines. The Decision then refers to the judgment of Campbell J in Ryder v Sundance Bakehouse, [11] relating to the need, pursuant to s 323 of the 1998 Act, to enquire into whether there are other causes, including previous injury or pre-existing abnormality, of the impairment that is being assessed.
20. The Decision then refers to the judgment of Simpson AJ in Marks v Secretary, Department of Communities and Justice (No 2). [12] In her Honour's reasons for judgment, Simpson AJ concluded that Guidelines 11.10, to the extent that it excludes consideration of any contribution made to the impairment by a pre-existing condition was inconsistent with s 323(1) of the 1998 Act, and therefore invalid.
21. The Decision then refers to a series of records from the Hassall Grove Medical Centre, to the circumstance that the Appeal Panel noted that the Medical Assessor found that the plaintiff had a pre-existing injury and condition, being a major depressive disorder. The Medical Assessor took the view that the pre-existing injury made no direct contribution to the WPI because the plaintiff was "asymptomatic at the time of the deemed injury, was coping well, was working full time and there was no evidence of any deterioration in his professional or personal functioning". [13] This issue is not relevant to the current proceedings but may relate to the difference between injury and impairment. It is "impairment" that is required to be assessed under s 323 of the 1998 Act.
22. The Appeal Panel Decision noted that the Medical Assessor recorded that the plaintiff was on antidepressants at the time of the subject injury. The Decision then noted that the Appeal Panel concluded that it was necessary for the plaintiff to undergo a further medical examination, "because there was insufficient evidence on which to make a determination". The Decision then continues: "Having found error, the Appeal Panel considered it necessary to re-assess the PIRS categories as this could be relevant to the assessment of any deduction". [14]
23. The Decision then recites the plaintiff's medical history where it differs from a previous record and additional history since the Medical Assessment Certificate was performed. [15] The findings on clinical examination are recited, being the findings of Medical Assessor Glozier, a Member of the Appeal Panel, the Report of which is contained within the Decision under review. [16] It notes that "the Appeal Panel has adopted the reported findings of Medical Assessor Glozier". [17]
24. The Decision records that the Appeal Panel applied its findings to the PIRS scale and concluded that there was an assessment of 7% WPI and reduced that assessment by 10% being the deduction said to be pursuant to s 323 of the 1998 Act.

Consideration

1. The legislative scheme implemented by the promulgation of the 1987 and 1998 Acts has been the subject of significant authority. In each case the courts have examined the purposes of the relevant statute. There is, as is obvious from a reading of the statutes, more than one purpose.
2. One of those purposes is to take the determination of medical disputes relating to workplace injuries out of the hands of the courts and to provide for medical experts to determine those medical disputes, including the assessment of whole person impairment and the degree to which any relevant impairment is caused by the stated injury.
3. The purpose of requiring Medical Assessors and an Appeal Panel to give a written statement of reasons for the opinion that is formed is, amongst other things, for the persons affected by the determination to be provided with an understanding of the reasons and to enable a court with jurisdiction to supervise the proper application of the law to see whether the determination does or does not involve any error of law. [18]
4. While there are significant similarities between the scheme promulgated for worker injuries and those promulgated for motor injuries, there is, relevant to the current proceedings, one significant difference. If a person refers the Medical Assessment to a Review Panel under the Motor Accidents Compensation Act 1990 (NSW), the Review Panel, expressly, is not limited to a review only on that aspect of the assessment that is alleged to be incorrect. The Review Panel conducts a "new assessment of all the matters with which the medical assessment is concerned". [19]
5. On the other hand, an appeal to an Appeal Panel under the scheme in place for workplace injuries is stated, expressly, to be a review that "is limited to the grounds of appeal on which the appeal was made". [20] The grounds of appeal prescribed by s 327(3) of the 1998 Act are any of the following: 1. deterioration of the worker's condition that results in an increase in the degree of permanent impairment; 2. availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against); 3. the assessment was made on the basis of incorrect criteria; and 4. the medical assessment certificate contains a demonstrable error. [21]
6. Ordinarily, when words are used in a statute, they are given the same or a correlative meaning every time they are used. Thus, ordinarily, the reference to the Appeal Panel being confined to the "grounds of appeal" on which the appeal was made would be a confinement to one of the four grounds set out in s 327(3) of the 1998 Act.
7. However, such a course creates some tension. The first two defined grounds of appeal in s 327(3) of the 1998 Act refer to a very different kind of appeal or review. The first of them deals with a deterioration and, necessarily, fresh evidence and the second also deals with fresh evidence, in the strict sense.
8. The third and fourth "grounds of appeal", as can be seen from the foregoing, relate to an assessment made on the basis of incorrect criteria and an assessment certificate that contains a demonstrable error. It is unnecessary in the current reasons to deal with what amounts to a "demonstrable" error. The reference to "incorrect criteria" seems to be a reference to that which is prescribed in ss 322, 322A and 323 of the 1998 Act, together with the Guidelines, to which s 322 refers.
9. The Form (Form 10) lodged to Appeal Against a Decision of Medical Assessor is pro forma and lists "Grounds of Appeal", and merely repeats the four paragraphs of s 327(3) of the 1998 Act, which are required to be "ticked". This is, from the perspective of a tribunal seeking to deal with that which is in issue between the parties, less than helpful.
10. The Form does not require a person seeking to appeal to specify the criterion or criteria that are said to be incorrect. There may be a number. For example, it may be that the activities of the claimant have been wrongly classified under the PIRS or it may be that one or other of the aspects of the medical assessment that are presumed to be correct, have been incorrectly assessed or not dealt with at all or adequately.
11. The Medical Assessment Certificate is presumed to be correct, conclusively, in relation to a number of aspects, being: the degree of permanent impairment of the worker as a result of an injury; whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality; the nature and extent of loss of hearing suffered by a worker, if relevant; whether impairment is permanent; and, whether the degree of permanent impairment is fully ascertainable. Thus, as is the case here, where it is alleged that the Medical Assessor has not allowed for the degree of impairment of any previous injury, an Appeal Panel would be unaware, from the Form 10 Application to Appeal alone, of the nature of the appeal and the grounds of the appeal.
12. Given the significant difference between that which is permitted under the Motor Accidents Compensation Act and the 1998 Act, the term by which the nature of the appeal is confined must be given some meaning. To confine it only to "incorrect criteria" is not a confinement at all.
13. In most cases, certainly in my experience on the Court, an appeal lodged by lodging a Form 10 also includes written submissions on appeal. Indeed, Form 10 enquires of the appealing party whether they have filed submissions attached "detailing the grounds of the appeal". [22] In this case, that enquiry was answered in the affirmative, and the submissions were attached to the Form 10, from which the earlier adumbrated grounds in these reasons were summarised.
14. It would seem for the legislature's purpose to be achieved, in confining the Appeal Panel to the grounds of appeal on which the appeal is made, the reference to "grounds of appeal" is not a reference to the paragraphs of s 327(3) of the 1998 Act. Rather, in an appeal under s 327(3)(c) or (d), it is a reference to the grounds upon which it is said error occurred and may be a reference to error in one or more of the matters contained in s 326(1) of the 1998 Act.
15. As can be seen from the summary of the grounds upon which Coca-Cola relies before the Appeal Panel, [23] each of them relates to an assessment of impairment arising from psychological injury other than the relevant injury or other than that caused by the work. In each case the appeal ground relates to the existence of impairment arising from a secondary psychological injury, or a pre-existing injury or, if different, a sequela of the plaintiff's physical injury and, as a consequence, a failure to deal with the assessment in accordance with s 323 of the 1998 Act.
16. There is no appeal ground relating to the classification of the activities of the plaintiff. Further, there is no complaint as to the failure to examine or any error in the clinical examination of the plaintiff.
17. The Appeal Panel found that there was no secondary psychological injury nor any injury, if it be different, arising from the physical injuries suffered by the plaintiff as a result of any work injury. The Appeal Panel found that there was, it seems, a failure to have regard to all of the material attached to the reply and did so on the basis that only some of the material attached to the reply was the subject of comment in the reasons of the Medical Assessor.
18. In relation to that ground, the consequence of the failure, if there were a failure, to have regard to "all" of the material attached is that the pre-existing injury was "underestimated" and was not deducted in accordance with s 323 of the 1998 Act. In other words, Ground 2 is a particular of the reasons why Ground 4 should be successful and Grounds 1 and 2 are particulars of the impairment arising from an injury other than the relevant injury, which is to be or was assessed under the claim.
19. Notwithstanding the confined nature of the grounds of appeal in the submissions of Coca-Cola, the Appeal Panel embarked upon a clinical examination. Assuming for present purposes that the 1998 Act permits the Appeal Panel to undertake such a clinical examination, to which issue the Court will come later in these reasons, whether the Appeal Panel undertakes such an examination is a matter for the Appeal Panel.
20. A decision to undertake such an examination, or a failure to undertake such an examination, would not ordinarily be an error of law and would certainly not be, again assuming authority in the 1998 Act, jurisdictional error. It is a decision on process and, other than in exceptional circumstances that I find difficult to envisage, would relate to an exercise being a finding of fact, rather than an issue of law.
21. Nevertheless, the Appeal Panel also embarked upon a process by which they reassessed anew each of the activities and calculated, for themselves, the whole person impairment arising from the injury or, otherwise stated, currently suffered. One of the purposes of the workplace injury regime is to facilitate and encourage agreement and the narrowing of issues between the parties. Such a purpose informs the construction of the limitation in s 328(2) of the 1998 Act.
22. As to the grounds of appeal expressed in the Submissions of Coca-Cola, as stated earlier, the Appeal Panel found that the plaintiff had "a previous injury and pre-existing condition and were satisfied that a reduction pursuant to s 323 of the 1998 Act was required as a proportion of the impairment assessed was due to that previous injury or pre-existing condition." [24] As a consequence, the Appeal Panel considered that a deduction of 10% was appropriate and was not at odds with the evidence. [25]
23. The terms of s 323(2) of the 1998 Act require a deduction of 10% of the impairment unless such an assumption is at odds with the available evidence. The Appeal Panel Decision records that the Appeal Panel considered that it was not "at odds with the available evidence".
24. However, the 10% impairment that is to be deducted only arises in circumstances where the deduction that is to be calculated for the pre-existing or previous injury "will be difficult or costly". There is no finding by the Appeal Panel of that circumstance, and it seems as if the Appeal Panel has simply defaulted to 10% without turning its mind to that issue. Nevertheless, the failure of the Appeal Panel in that regard is not the subject of application before the Court and I do not deal with it further.
25. As earlier stated, one of the purposes of the legislative scheme embodied in the 1987 Act and the 1998 Act is to ensure that medical assessments are conducted by independent experts outside of the curial process. The process adopted is, by definition, less formal, and is intended to be concluded more expeditiously.
26. Such a purpose informs the interpretation of the 1987 Act and the interpretation of the 1998 Act. Nevertheless, the legislature has imposed certain relatively strict conditions. One of those conditions, by which this scheme differs from the scheme promulgated for motor accidents, is that an appeal to an Appeal Panel is confined to the grounds of appeal.
27. If the term "grounds of appeal" in that confinement referred to the paragraphs of s 327(3) of the 1998 Act, the effect would hardly be a confinement and would not substantially differ from the regime imposed for motor accidents. Yet, the legislature has, obviously quite deliberately, chosen to differentiate the process and the jurisdiction of the Appeal Panel.
28. The grounds prescribed in s 327(3) of the 1998 Act specify two kinds of appeals. One kind deals with "fresh evidence" and requires a new assessment based upon different material, either a deterioration in condition or material that was unavailable at the time of the assessment initially determined.
29. The second kind of appeal is an appeal in which it is alleged there is error. The error is required either to be one in which the assessment has been made on the basis of incorrect criteria or is demonstrable.
30. Those two factors are not mutually exclusive. An assessment made on incorrect criteria may be a demonstrable error, or it may not. Further, a demonstrable error may be demonstrable but not one in which the assessment is based upon incorrect criteria.
31. Nevertheless, in either circumstance, the type of appeal is one in which the Appeal Panel is required to find error and correct it. The error must be an error relied upon by the party seeking to appeal the initial Medical Assessment.
32. In this case, the Appeal Panel embarked upon a re-assessment of the whole person impairment and, in so doing, exercised a jurisdiction well beyond the grounds of appeal raised by the appellant, Coca-Cola. In so doing, the Appeal Panel did not limit the review "to the grounds of appeal on which the appeal was made" and, in not so limiting itself, exceeded the jurisdiction permitted by the provisions of s 328(2) of the 1998 Act. There is jurisdictional error and error of law.
33. During the course of the proceedings before the Court, the Court raised two issues with the parties relating to the form of the Decision of the Appeal Panel and the process undertaken by it.
34. Pursuant to the provisions of s 328(2) of the 1998 Act, prior to its current form, the Act provided that the Guidelines would provide the procedure on appeal and the relevant Guidelines provided that the Panel could decide to examine the worker and that such an examination could be conducted by one Member of the Panel. [26] The previous Act contained other provisions consistent with that approach.
35. The previously enacted s 331 of the 1998 Act provided that the Guidelines applied to medical assessments, appeals and further assessment. The current s 331 applies the Commission Rules, but there are no relevant rules relating to an Appeal Panel.
36. The current provisions of s 328(2A) of the 1998 Act provide that any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel. This provision assumes that the Appeal Panel has a power to re-examine and the proper construction of the 1998 Act would lead one to the inexorable conclusion that, whether there was express power, and notwithstanding the alteration from previous editions of the statute, a Medical Assessor who forms part of an Appeal Panel may re-examine a claimant, if thought necessary for the purposes of determining a ground of appeal raised.
37. The other issue seems somewhat pedantic but relates, not only to the provisions of the 1998 Act, but also the form of the reasons for Decision of the Appeal Panel. The Decision of the Appeal Panel is written in the third person and refers to that which the Appeal Panel did or decided. [27]
38. Not only is the reference to the Appeal Panel in the third person, it is in the past tense in every reference. Thus, for example, at [73], [28] the Appeal Panel Decision records: [73] The Appeal Panel then made a 1/10th deduction pursuant to s 323 of the 1998 Act."
39. In other words, the Decision is written in a form which records that which has happened by a person observing it. The Appeal Panel Decision was issued by a Disputes Support Officer, who is named. [29]
40. Further, the Appeal Panel Decision is not signed or adopted by any Member of the Appeal Panel. By contrast, the Medical Assessment Certificate is issued over the name of each of the Members of the Appeal Panel.
41. By operation of s 58 of the Personal Injury Commission Act 2020 (NSW), the Commission is required to publish its decisions, including decisions of Appeal Panels for medical assessments under the 1998 Act. [30] The Commission means the Personal Injury Commission of New South Wales established under the Personal Injury Commission Act [31] and the Commission consists of the President, Deputy Presidents, Principal Members, Senior Members and General Members, each of whom are appointed and must be qualified to be appointed. [32]
42. Further, the Commission must be constituted by one or more Division Members of the relevant Division. [33] Further again, r 130 of the Personal Injury Commission Rules 2021 (NSW) requires that a Review Panel, which includes any panel dealing with a review of a medical assessment, [34] must be published, which sits comfortably with the provisions of s 58 of the Personal Injury Commission Act.
43. Nothing in these proceedings turns on the above difficulty. However, it is at least arguable that the Appeal Panel Decision is a note by an employee of the Commission of that which the Appeal Panel decided and not a publication of the reasons of the Appeal Panel itself. The Appeal Panel is required to publish its reasons and the Commission is required to publish the reasons of the Appeal Panel. I raised the issue because the matter needs to be the subject of some attention in the Rules and/or in some statutory provision.
44. For the reasons provided, the Appeal Panel has extended its reach beyond that to which it was limited. The Appeal Panel has dealt afresh with the Medical Assessment instead of dealing only with the issue raised on appeal by Coca-Cola.
45. Further, that error is material and relates to the ultimate determination of the Appeal Panel. If the Appeal Panel were to have confined itself to the issues and/or grounds raised by Coca-Cola in its appeal, it would have applied the deduction of 10% for a previous or pre-existing injury to the assessment otherwise determined and obtained a WPI of approximately 22%.
46. For the foregoing reasons, the Court makes the following orders: 1. Pursuant to the terms of s 69 of the Supreme Court Act 1970 (NSW), the Court issues an order in the nature of certiorari and quashes the Determination of the Appeal Panel and the Medical Assessment Certificate in the appeal by Coca-Cola Amatil (now Coca-Cola Europacific Partners API Pty Ltd) on the claim by Luis Manuel Pombinho of 29 March 2023; 2. The Court remits the aforesaid appeal to the second defendant, the President of the Personal Injury Commission of New South Wales, to be determined, in accordance with law, including, to the extent appropriate, a referral to an Appeal Panel constituted under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW); 3. The first defendant shall pay the plaintiff's costs of and incidental to the proceedings.

Endnotes

1. Appeal Panel Decision at [14]; Court Book, Vol 2, at p 543.
2. Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284; Siddik v Workcover Authority of NSW [2008] NSWCA 116; (2008) 6 DDCR 228.
3. New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
4. Appeal Panel Decision at [34]; Court Book, Vol 2, p 554.
5. Appeal Panel Decision at [38]; Court Book, Vol 2, p 556.
6. Ibid.
7. Appeal Panel Decision, at [40]; Court Book, Vol 2, p 556.
8. Ibid, at [41]; p 556.
9. Appeal Panel Decision, at [43]; Court Book, Vol 2, p 557.
10. Cole v Wenaline Pty Ltd [2010] NSWSC 78.
11. Ryder v Sundance Bakehouse [2015] NSWSC 526.
12. Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616.
13. Appeal Panel Decision, at [59]; Court Book, Vol 2, p 563.
14. Appeal Panel Decision, at [62]; Court Book, Vol 2, p 563.
15. Appeal Panel Decision, at p 27; Court Book, Vol 2, p 567.
16. Appeal Panel Decision, at [63]; Court Book, Vol 2, p 563 and following.
17. Appeal Panel Decision, at [64]; Court Book, Vol 2, p 570.
18. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 (Basten AJ).
19. Motor Accidents Compensation Act 1990 (NSW), s 63(3A).
20. Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("1998 Act"), s 328(2).
21. 1998 Act, s 327(3).
22. Court Book, Vol 2, p 517.
23. See, infra, at [10].
24. Appeal Panel Decision, at [66]; Court Book, Vol 2, p 570.
25. See s 323(2) of the 1998 Act and Appeal Panel Decision, at [67]; Court Book, Vol 2, p 570.
26. Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 at [48] and [49].
27. See, for example, Decision of Appeal Panel at [32], [37], [38], [40], [41], [43], [47], [59], [62], [64], [65], [66], [67], [69], [70], [73] and [74].
28. Appeal Panel Decision, at [73]; Court Book, Vol 2, p 571.
29. Appeal Panel Decision; Court Book, Vol 2, p 571.
30. Personal Injury Commission Act 2020 (NSW), s 58(1)(a) and (d).
31. Personal Injury Commission Act 2020 (NSW), s 5(1).
32. Personal Injury Commission Act 2020 (NSW), ss 8 and 9.
33. Personal Injury Commission Act 2020 (NSW), s 31.
34. Personal Injury Commission Rules 2021 (NSW), r 5. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2023