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 AssociationCategory: 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:
Solicitors:
C Tanner (P)
P Perry (D1)
Submitting (D2)
Submitting (D3)
Carroll & O’Dea Lawyers (P)
Crown Solicitors Office (D1, D2, D3)
File Number(s): 2016/4959 Publication restriction: Not Applicable
Judgment
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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.
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The plaintiff subsequently suffered a further deterioration in the condition of his legs, and he made a further claim for compensation.
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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.
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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.
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The relevant parties disputed the extent of the plaintiff’s permanent impairment in both his right and left lower extremity.
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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…
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- Case
- [2016] NSWSC 1053
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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