Background
Jo-Anne Howard, a former trackwork and stable hand, suffered injuries to her neck and shoulders in a workplace accident in January 2009. After multiple operations and years of treatment, her employer’s insurer discontinued weekly compensation payments in 2022. A Member of the Personal Injury Commission subsequently found that Howard had no current work capacity resulting from her workplace injuries and was entitled to weekly compensation from 21 July 2022.
Following an earlier appeal and remittal, an Acting Deputy President of the Commission rejected the employer’s challenges to the Member’s treatment of surveillance footage, medical opinions, lay evidence, the absence of early complaints, Howard’s presentation at the hearing, and the adequacy of the Member’s reasons. The employer then appealed to the Court of Appeal under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), advancing amended grounds alleging that the Acting Deputy President’s weighing of the evidence was unreasonable.
The Court’s Holding
The Court of Appeal dismissed the appeal. Ball JA, with Leeming and Kirk JJA agreeing, held that an appeal under s 353 is confined to an error “in point of law” by the presidential member whose decision is under appeal. Although an underlying legal error by a non-presidential member may sometimes be relevant, the appeal must remain directed to the presidential member’s decision.
The employer’s amended grounds did not identify any error of law in how the Acting Deputy President decided the grounds before her. Instead, they largely attempted to relitigate the weight given to surveillance and medical evidence. The separate contention that no reasonable reviewer could have found Howard lacked current work capacity also failed because that issue had not been raised as a ground before the Acting Deputy President, who could not be faulted for failing to decide it.
The employer was ordered to pay Howard’s costs up to 10 August 2026 on an indemnity basis and its later costs on the ordinary basis. The cutoff corresponded with the filing of the employer’s reply submissions; the original grounds were abandoned only afterward, at the appeal hearing.
Key Takeaways
- An appeal from a presidential member of the Personal Injury Commission under s 353 must identify a material error in point of law by that presidential member.
- Recasting disagreements about the weight of evidence as unreasonableness does not, without more, establish an appealable legal error.
- A presidential member generally does not err by failing to determine an issue that was not advanced as a ground of appeal before the Commission.
Why It Matters
The decision reinforces the narrow scope of Court of Appeal review in New South Wales workers’ compensation matters. Parties cannot use s 353 to obtain another factual rehearing or simply repeat evidentiary complaints rejected by a presidential member.
Appellants must frame their Commission grounds carefully and then identify a specific material legal error in the presidential member’s treatment of those grounds. Abandoning grounds late in the proceeding may also carry indemnity-cost consequences.