Fishburn v Integral Energy Australia - [2005] NSWWCCPD 53

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Fishburn v Integral Energy Australia
[2005] NSWWCCPD 53

APPELLANT:  Michael Fishburn
RESPONDENT:  Integral Energy Australia
FILE NUMBER:  WCC16050-2004
DATE OF ARBITRATOR’S DECISION:          14 February 2005
DATE OF APPEAL DECISION:  24 June 2005
SUBJECT MATTER OF DECISION: Admission of Medical Reports; ‘Claims Management Phase Reports’, Part 10, Clause 43 and Clause 43A of the Workers Compensation Regulation 2003; Discretion; Procedural Fairness; and Practice Direction No.3.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION:  Appellant:    White Barnes Solicitors
Respondent: Leigh Virtue and Associates

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 14 February 2005 is revoked and the following decision is made in its place:
1.The matter is referred to an Approved Medical Specialist.
2.The reports of Dr Hughes, and Dr Edwards are admitted into evidence in the proceedings and are to be disclosed to the Approved Medical Specialist.

CONTENTS PAGE

Background  1
Issues in Dispute  1
‘On the Papers’ Review  2
Jurisdiction  2

Did the Arbitrator err in directing that the reports of Doctors

Edwards, Smith, Ehrlich and Hughes be admitted in the proceedings

and disclosed to the AMS? 3

The Rule 40 Error  3
The Clause 43A Error  4
What is a ‘Particular Specialty’?  6
Compliance with Practice Direction No. 3  7
“Claims Management Phase Reports”  7

The Relevance Error  9
Discretion to Admit - Clause 43 of the Regulation  10
Disclosure to AMS - Clause 43A of the Regulation  12
Application to the Facts  13

The Procedural Fairness Error 15
Application of Part 10 of the Regulation – Summary 15

Decision 16
Costs 17

Background

Michael Fishburn (‘Mr Fishburn’) has made a claim on his employer Integral Energy Australia (‘Integral’), for lump sum compensation for permanent impairment and pain and suffering, as a result of an injury suffered from a fall off a ladder at work on 18 January 2001. He has also claimed compensation for reasonable medical expenses in relation to the injury, including chiropractic treatment. He claims to have injured his neck, his back and both arms at or above the elbow. When the injury occurred he was working for Integral as an electrical fitter/mechanic. He has continued in this employment.

Integral deny liability for the claim on the basis of medical reports which opine that Mr Fishburn does not suffer from a permanent impairment to any part of his body and that the chiropractic treatment he received was not reasonably necessary to treat his alleged injury.

The dispute went before a Commission Arbitrator at a telephone conference on 9 February 2005. The Commission is not permitted to finally determine a claim for permanent impairment compensation, unless the worker has been assessed by an Approved Medical Specialist (‘AMS’). The Arbitrator therefore referred the matter to an AMS for an assessment of the degree of Mr Fishburn’s permanent impairment, if any.

The Arbitrator directed that the medical reports of Doctors Edwards, Smith, Ehrlich and Hughes, filed by Integral, be…

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.

Keep reading for free

Create a free CaseChat account to read Fishburn v Integral Energy Australia and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWWCCPD 53
Decision Date: 24 June 2005

CaseChat Overview and Summary

Fishburn v Integral Energy Australia involved an appeal against a decision of the Commission constituted by an Arbitrator. The issue was whether the Arbitrator erred in admitting certain medical reports into evidence and disclosing them to an Approved Medical Specialist (AMS). The court found that the Arbitrator had indeed erred in several respects. Firstly, the Arbitrator failed to properly consider the relevance of the medical reports, particularly those of Drs Smith and Ehrlich. Secondly, the Arbitrator did not exercise her discretion to refuse to admit and disclose the reports fairly and lawfully. The court granted the appeal and revoked the Arbitrator's decision. The matter was referred to an AMS, and the reports of Drs Hughes and Edwards were admitted into evidence and disclosed to the AMS.

The court's reasoning focused on the statutory and regulatory framework governing the admission of medical reports in workers compensation proceedings. It considered the purpose of the regulations, which was to limit the number of reports to avoid excessive costs and potential unfairness. However, the court held that the Arbitrator still had a discretion to refuse to admit and disclose reports that were irrelevant or otherwise not probative of the issues in dispute. The court also emphasized the importance of procedural fairness in ensuring that the AMS had relevant and probative evidence upon which to base its assessment.

In summary, the court found that the Arbitrator's decision was flawed in several respects, but it did not invalidate the overall process for referring medical disputes to AMS. The key takeaway was that Arbitrators must exercise their discretion to admit and disclose evidence fairly and lawfully, taking into account factors such as relevance and probity. The decision highlights the need for clarity in the relevant legislation and regulations to avoid ambiguity and ensure consistent application.

Orders