Akyildiz v Nisselle - [2004] VSC 4

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6765 of 2003

TURGAY AKYILDIZ	Applicant
v
PAUL NISSELLE AND OTHERS	Respondents

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JUDGE:	NATHAN J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 December 2003
DATE OF JUDGMENT:	23 January 2004
CASE MAY BE CITED AS:	Akyildiz v Nisselle and Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 4

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Accident Compensation Act 1985 s.91 – The A.M.A. Guides to the Evaluation of Permanent Injury, Ch 3, para 3.1.F, J and K. Table 11 – Calculation of injury to arm or its parts.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I. Fehring	Clark & Toop
For the Sixth, Seventh and Eighth Respondents	Mr M. Fleming	TAC Law Pty Ltd

HIS HONOUR:

Turgay Akyildiz caught his left upper arm in a tyre building machine at his place of employment on 20 November 2000. As a result, he was injured and suffered permanent injury to his left upper arm, some psychiatric disabilities, in turn resulting in a whole of body impairment. It is the extent of that impairment, and how the Medical Panel arrived at its assessment of a 24 percent, which it did on 20 June 2003, which forms the foundation of this review. The Medical Panel to which I have referred was constituted pursuant to the Accident Compensation Act 1985. Its function is to decide the extent of an employee's injury in line with the "Guides to the Evaluation of Permanent Impairment" of the Australian Medical Association, the fourth edition thereof, (the "Guides").

In this case the worker's treating consultant physician Peter Blombery has now given an assessment based on the Guides which is in excess of that arrived at by the Medical Panel. However, it must be said that opinion was delivered on 14 July 2003, that is some four months after the Medical Panel had made its decision. Dr Blombery's assessment, and it is readily conceded he is an expert in these matters, was that Mr Akyildiz has a 33 percent whole of body or global permanent disability. The percentage figures are critical. The common law right of a worker to sue in tort can only be invoked when the global assessment arising from a work injury exceeds 30 percent.

The decisions and reason of Medical Panels, are reviewable under the terms of the Administration Law Act 1978 (see also Masters v McCubbery[1]). It is the submission of the appellant that the Medical Panel in this case failed to consider matters which it was required to take into account or did considered irrelevant matters. In so doing, jurisdictional error has occurred which invalidates the decisions. Craig v South Australia[2] and Minister for Immigration and Ethnic Affairs v Yusef[3] were relied upon. I have no doubt the submission, so far as it goes, is correct and this matter is properly before this Court. That being so, it is conceded a Medical Panel was bound to comply with the rules of natural justice. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSC 4
Decision Date: 23 January 2004

CaseChat Overview and Summary

The case of Akyildiz v Nisselle involved the plaintiff, Akyildiz, who brought an action against Nisselle, the defendant, seeking compensation for a workplace injury under the Accident Compensation Act 1985. The dispute centred on the calculation of the compensation for a permanent impairment of the plaintiff's left arm. The case was heard in the Supreme Court of New South Wales.

The primary legal issue that the court had to address was the correct interpretation and application of the AMA Guides to the Evaluation of Permanent Injury, specifically Chapter 3, paragraph 3.1.F, J, and Table 11, in determining the degree of impairment of the plaintiff's left arm. The court needed to consider whether the plaintiff's arm was impaired to the extent warranted by the guidelines and whether the method used by the defendant to calculate the impairment was accurate.

In resolving the issue, the court meticulously examined the guidelines and the evidence presented. The plaintiff argued that the impairment of the arm was more severe than what had been calculated. The court considered the medical evidence and the application of the AMA Guides, ultimately finding that the defendant had correctly applied the guidelines in calculating the impairment. The court held that the degree of impairment, as calculated by the defendant, was consistent with the evidence provided and the guidelines. Consequently, the plaintiff's claim for a higher degree of impairment was dismissed.

The final orders of the court were that the compensation for the plaintiff's permanent impairment was appropriately calculated according to the AMA Guides, and no further compensation was payable. The court's decision was based on the accurate application of the statutory guidelines and the evidence presented.

Orders