NSW Supreme Court rules no procedural fairness breach in Personal Injury Commission decision

Case involved a claim for permanent impairment of worker’s right hip and lumbar spine

NSW Supreme Court rules no procedural fairness breach in Personal Injury Commission decision

The NSW Supreme Court found that the Personal Injury Commission’s appeal panel did not breach procedural fairness in a workers’ compensation case.

In Martin-Brower Australia Pty. Ltd [2023] NSWSC 253, Peter Mills sustained a work-related injury to his hip in 2016. He claimed workers’ compensation and his employer accepted liability. Subsequently, Mills argued that in addition to his hip injury, he had also suffered a lumbar spine injury. He claimed that his employer was also liable.

Mills’ claim included a claim for lump sum compensation for permanent impairment of his right hip and lumbar spine. His employer denied liability regarding the lumbar spine injury and disputed the amount claimed.

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The parties brought the dispute to the Personal Injury Commission under s. 288 of the Workplace Injury Management Act 1998 (NSW). Commission member Paul Sweeney remitted the matter for referral to a medical assessor to certify the degree of whole-person impairment.

A medical assessor’s initial assessment determined that Mills had a combined percentage of whole-person impairment at 18 per cent. An appeal panel composed of member Sweeney and two medical assessors confirmed the initial medical assessment. However, the panel did not examine Mills. Instead, they dealt with the matter on paper. The panel rejected Mills’ argument that the medical assessor had failed to apply the relevant guidelines.

Mills elevated the matter to the NSW Supreme Court, arguing that he was denied procedural fairness because he was not advised that member Sweeney was to be on the appeal panel and was not given an opportunity to object to Sweeney being on the appeal panel.  Further, he submitted that while he had been “assured” that he would be informed of the panel’s composition, this did not occur. He requested that the court set aside the appeal panel’s decision and remit the matter to a differently constituted appeal panel.

No denial of procedural fairness

The supreme court noted that it is well established that the principles relating to bias apply to judicial decision-makers and administrative decision-makers, such as the appeal panel. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide.

The court found that a “fair-minded” lay observer would appreciate that member Sweeney had expressed a tentative view about the existence of a lumbar injury in his decision on liability but had expressly avoided such a finding on the basis that it was not required for a referral to be made, before referring the matter for medical assessment. Further, a “fair-minded” observer would also appreciate that Member Sweeney, sitting alone as a Commission, addressed a different question to the one presented to the appeal panel. The court was not persuaded that there was any apprehension of bias because of the different roles played by the Commission when determining a liability dispute and the medical assessor and appeal panel when determining a medical dispute.

Accordingly, the court ruled that there was no “practical injustice” occasioned by the fact that the parties were not informed of the composition of the appeal panel. The court said Mills failed to establish any error of law based on apprehended bias or denial of procedural fairness.

The court further ruled that there was no failure to abide by the referral terms or apply the relevant guidelines. It was open to the medical assessor to apply the guidelines in the way in which he did. The court concluded that the appeal panel was entitled to confirm the medical assessor’s certificate.

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