All workers compensation merit reviews issued by icare are potentially subject to administrative law judicial review in the NSW Supreme Court. In this process, a party may seek orders that a decision should be set aside and sent back to icare for a revised decision to be made. Whenever a challenge is finalised and irrespective of the outcome, an assessment is undertaken to consider the impact of the judicial review decision and includes the potential impact of the finalised challenge on the dispute, functions of the Merit Review Service and the scheme more broadly. Of the thousands of applications for workers compensation merit review that have been finalised by icare, there has only been one Administrative Law challenge decided by the NSW Supreme Court.
Merit Review Challenges – Information sourced from icare, the following is an extract of the finding from “CSR v Busbridge”
On 11 September 2015, Supreme Court Justice Hamill handed down his decision in CSR Limited v Busbridge [2015] NSWSC 1268. The self-insurer challenged the Merit Review Service (MRS) decision about the worker’s entitlement to weekly payments of compensation, with the insurer seeking to have the decision set aside and remitted back to the MRS to be decided afresh. There were three grounds claimed in support of the judicial review and in the decision Justice Hamill found that none of those grounds were made out. As a result the Court dismissed the summons and ordered the insurer to pay the worker’s costs.
Key points:
- The basis for calculating a worker’s earning after the injury post-2012 amendments – The calculation is now based on the worker’s capacity to undertake suitable work rather than their ability to find such work: Hamill J at [7]
- Current weekly earnings – It is not a reasonable approach for an insurer to take a single week of a worker’s earnings after the injury and decide that to be a worker’s current weekly earnings: Hamill J at [28]. In this case, it was correct to approach the issue on the basis that the worker’s current weekly earnings “fluctuate from week to week dependent upon the hours he may perform”: at [26]–[28]
- Ability to earn in suitable employment – In this case, it was incorrect for an insurer to use a single pay period as a basis for assessing what a worker is able to earn in suitable employment: Hamill J at [42]. Where there is more than one conclusion open on the information, a decision-maker can (with reasons) prefer certain information in reaching a view about that issue: at [43]. If information contains “anomalies” about the amount a worker is able to earn in suitable employment it may raise questions about the validity of that information: at [45].
- The internal review and reply to the application for merit review are important opportunities for the insurer to make their case and be heard – If an insurer wants the Authority to consider an issue or certain information, it is important that the insurer raises it directly in its own decisions and in their reply to an application for merit review: see Hamill J’s comments at [34]. The reply to the application for merit review “was an opportunity for the [insurer] to put its case”: at [54]. An insurer’s failure to make proper use of an opportunity to be heard cannot be used to support a claim of procedural unfairness: at [55]. The Authority is not required to disclose its provisional views for the comment of the parties before reaching a decision: at [58].
- The Authority is not obligated to inquire – The insurer submitted at [51] that given the Authority’s “inquisitorial powers” the delegate should have obtained their own evidence and given it to the parties for comment. Hamill J did not consider it was mandatory for the delegate to do so in this case because the evidence and submissions were “not ambiguous”, further information was not required “in order for the delegate to undertake the review” and “there [was] nothing to suggest [the insurer] did not understand the process or was denied the opportunity to be heard”: at [53].
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