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Drosd v Workers Compensation Nominal Insurer

Drosd v Workers Compensation Nominal Insurer

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Case Copied 5 August 2016 30 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053
Hearing dates: 23 June 2016
Date of orders: 05 August 2016
Decision date: 05 August 2016
Before: Garling J
Decision:
(1)   Order that the Certificate and Statement of Reasons issued by the third defendant on 6 October 2015 be set aside as being contrary to law.
(2)   Order that the matter be remitted to the second defendant for consideration and decision as to whom a referral ought be made for an assessment of the left lower extremity impairment of the plaintiff in accordance with the law.
(3)   Order the first defendant to pay the plaintiff’s costs.

Catchwords: WORKERS’ COMPENSATION – medical assessment certificate – appeal to Appeal Panel – Workplace Injury Management and Workers Compensation Act 1998, ss 327, 328 – where Appeal Panel set aside medical assessment certificate of Approved Medical Specialist – where Appeal Panel did not make reference to the correct table in the guides to assessing permanent impairment – whether Appeal Panel’s determination was contrary to law
Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998
Texts Cited: 3rd Edition of the WorkCover Guides to the Evaluation of Permanent Impairment
5th Edition of The Guides to the Evaluation of Permanent Impairment of the American Medical Association
Category: Principal judgment
Parties: Peter Drosd (P)
Workers Compensation Nominal Insurer (D1)
The Registrar of the Workers Compensation Commission of NSW (D2)
Medical Appeal Panel (D3)
Representation:
Counsel:
C Tanner (P)
P Perry (D1)
Submitting (D2)
Submitting (D3)
Solicitors:
Carroll & O’Dea Lawyers (P)
Crown Solicitors Office (D1, D2, D3)

File Number(s): 2016/4959
Publication restriction: Not Applicable

Judgment

On 11 April 1994, the plaintiff, Peter Drosd, sustained an injury at work to his right leg as a result of slipping when descending a set of stairs. A consequence of the injury to his right leg was injury to his left knee due to subsequent overuse. Compensation was paid to the plaintiff.
The plaintiff subsequently suffered a further deterioration in the condition of his legs, and he made a further claim for compensation.
On 1 September 2014, an Arbitrator in the Workers Compensation Commission of NSW (“the Commission”) conducted a hearing to deal with the issue of whether the plaintiff’s left knee symptoms were a result of the injury to his right leg on 11 April 1994.
In a reserved decision delivered orally on 18 September 2014, the Arbitrator found that the plaintiff had overused his left knee and placed more load on that knee due to the injury he suffered to his right leg and that he had thereby sustained a compensable injury to his left knee.
The relevant parties disputed the extent of the plaintiff’s permanent impairment in both his right and left lower extremity.
The dispute was referred by the Registrar of the Commission (“the Registrar”) to an approved medical specialist (“AMS”) who was asked to assess the plaintiff’s permanent impairment of the right leg at or above…

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: [2016] NSWSC 1053
Decision Date: 05 August 2016

CaseChat Overview and Summary

In the case of Drosd v Workers Compensation Nominal Insurer, the claimant sought to challenge the decision of an Appeal Panel to set aside a medical assessment certificate provided by an Approved Medical Specialist. The dispute was heard in the Supreme Court of New South Wales. The claimant argued that the Appeal Panel's decision was flawed as it failed to reference the correct table in the guides for assessing permanent impairment, which is a critical step in the process under the Workplace Injury Management and Workers Compensation Act 1998. The court had to determine whether the Appeal Panel's determination was contrary to law, specifically in its failure to correctly apply the statutory framework for assessing permanent impairment.

The key legal issue before the court was whether the Appeal Panel's decision to set aside the medical assessment certificate was legally sound. The claimant contended that the Appeal Panel's oversight in not referring to the correct table in the impairment assessment guides constituted an error of law. The court had to consider whether such an error rendered the Appeal Panel's decision invalid. The claimant further argued that the Appeal Panel's failure to follow the correct procedure undermined the integrity of the appeal process and prejudiced the claimant's rights under the Act.

The court found that the Appeal Panel indeed erred in not referencing the correct table in the impairment assessment guides, which is a critical step under the statutory framework. This error was deemed to be one of law, as it affected the fundamental process of assessing permanent impairment. The court concluded that the Appeal Panel's failure to adhere to the correct statutory requirements resulted in a decision that was contrary to law. Consequently, the court set aside the Appeal Panel's determination and remitted the matter back to the Appeal Panel for reconsideration, ensuring that the correct table in the guides was properly referenced in the assessment process.

Orders