All workers’ compensation merit reviews by Icare can be challenged through judicial review in the NSW Supreme Court. A party may seek to have a decision set aside and returned to icare for reconsideration. After each challenge, Icare assesses the impact on the dispute, the Merit Review Service, and the broader scheme. Despite thousands of merit review applications finalised, only one administrative law challenge has been decided by the NSW Supreme Court.
On 11 September 2015, Supreme Court Justice Hamill handed down his decision in CSR Limited v Busbridge [2015] NSWSC 1268. As a result, the Court dismissed the summons and ordered the insurer to pay the worker’s costs.
- Post-2012 amendments – A worker’s earnings after injury are calculated based on capacity to perform suitable work, not ability to find such work (Hamill J [7]).
- Current weekly earnings – Insurers cannot rely on a single week’s pay; earnings fluctuate depending on hours worked (Hamill J [26]–[28]).
- Ability to earn in suitable employment – A single pay period is not a valid basis for assessment. Decision-makers may prefer certain evidence if justified, but anomalies in data can undermine reliability (Hamill J [42]–[45]).
- Insurer’s opportunity to be heard – Insurers must raise issues directly in decisions and replies to merit review applications. Failure to do so cannot support claims of procedural unfairness. The Authority need not disclose provisional views before deciding (Hamill J [34], [54]–[58]).
- Authority’s obligations – The Authority is not required to seek further evidence if submissions are clear and parties had the opportunity to be heard (Hamill J [51]–[53]).
Should you want to understand this further, please contact us to discuss.