Fowell v TNT Australia Pty Limited - [2007] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Fowell v TNT Australia Pty Limited [2007] NSWWCCPD 35
APPELLANT:  Ronald Gricham Fowell
RESPONDENT:  TNT Australia Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC 13425-05
DATE OF ARBITRATOR’S DECISION:          7 June 2006
DATE OF APPEAL DECISION:  6 February 2007
SUBJECT MATTER OF DECISION: Medical Assessment Certificate; causation; section 323 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      McClellands Lawyers
Respondent:   Goldbergs Lawyers

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 7 June 2006 is confirmed.
2.No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 19 June 2006 Ronald Gricham Fowell (‘Mr Fowell’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 June 2006.

The Respondent to the Appeal is TNT Australia Pty Limited (‘TNT’).

Mr Fowell was working for TNT as a driver when on 26 August 1988 he injured his right ankle. The injury happened when dropping off some parcels at the TNT freight dock. Whilst jumping up onto the dock he slipped on some oil and was thereby injured.

After two weeks off Mr Fowell returned to lighter work as a supervisor. He continued to have trouble with his right ankle and underwent a number of surgical procedures. He returned to work with TNT as a supervisor after each of these procedures.

Mr Fowell commenced proceedings in the then Compensation Court of NSW for lump sum compensation as a result of the injury. On 6 March 1996 the parties, having reached agreement, filed Terms of Settlement under which Mr Fowell was paid lump sum compensation pursuant to section 66 and section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) based on 50% permanent loss of efficient use of the right leg below the knee.

In August 2001 Mr Fowell underwent a below knee amputation. He returned to work with TNT and although not entirely clear it appears he stopped work in December 2004 due to multiple myeloma affecting the sacrum.

On 14 January 2005 Mr Fowell wrote to TNT claiming further lump sum compensation as a result of the injury on 26 August 1988. As the matter did not resolve an Application to Resolve a Dispute was lodged in the Commission on 10 August 2005.

THE ARBITRATOR’S DECISION

A teleconference was arranged with the parties for 19 October 2005, however it was rescheduled to 7 November 2005. On this last mentioned date the matter was referred to Dr John Beer, Orthopaedic Surgeon and Approved Medical Specialist. On 25 January 2006 the Medical Assessment Certificate was issued.

On 1 March 2006 Mr Fowell lodged an Application to Appeal the Decision of the Approved Medical Specialist. On 4 May 2006 the Registrar refused leave to appeal as the Application was filed out of…

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: [2007] NSWWCCPD 35
Decision Date: 6 February 2007

CaseChat Overview and Summary

Ronald Gricham Fowell, the appellant, sought leave to appeal a decision of the Workers Compensation Commission against TNT Australia Pty Limited, the respondent. The primary dispute revolves around the assessment of Mr. Fowell's permanent impairment of his right leg, stemming from an injury he sustained while working for TNT. Specifically, the appeal focuses on the Arbitrator's decision to award no additional compensation beyond the terms of a prior settlement agreement, which was based on a 50% permanent loss of efficient use of the right leg below the knee. The issues in dispute are whether the Arbitrator erred in not determining the issue of causation and what the status of the Medical Assessment Certificate is.

The court determined that the Arbitrator did not err in relying on the Medical Assessment Certificate, which was issued by an Approved Medical Specialist. The certificate, although not binding on all matters, is binding on the degree of permanent impairment and any deductions due to pre-existing conditions. The Arbitrator's decision to rely on the certificate was consistent with the statutory requirements, and thus, the Arbitrator did not err in failing to determine the issue of causation separately. The deduction made by the Approved Medical Specialist regarding the pre-existing injury was within their powers and binding on the parties. The Arbitrator's decision to confirm the certificate and not award additional compensation was therefore upheld.

The Acting Deputy President Julian Martin confirmed the decision of the Arbitrator dated 7 June 2006, finding no merit in the appeal. As a result, no additional costs were awarded to the respondent, TNT Australia Pty Limited. This decision underscores the binding nature of the Approved Medical Specialist's assessment on specific matters and the proper procedural reliance on such assessments by the Arbitrator.

Orders