Guzman v Trade West Pty Limited - [2017] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Guzman v Trade West Pty Ltd [2017] NSWWCCPD 44
APPELLANT:	Luis Guzman
RESPONDENT:	Trade West Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd as agent for icare NSW
FILE NUMBER:	A1-1847/17
SENIOR ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	8 June 2017
DATE OF APPEAL DECISION:	23 October 2017
SUBJECT MATTER OF DECISION:	Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – leave to appeal an interlocutory decision, dismissal of proceedings pursuant to s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998; the bifurcated system and application of Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128; 12 DDCR 307 and associated authorities
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sanford Legal
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act1998. 2. The Certificate of Determination dated 8 June 2017 is revoked, and the following decision is made in its place: “1. The matter is remitted to the Registrar, for referral to an Approved Medical Specialist, to assess whole person impairment (cervical spine and right upper extremity - shoulder), resulting from injury on 1 August 2006. 2. The Approved Medical Specialist is to have access to the material that was in evidence before the Senior Arbitrator. 3. The Approved Medical Specialist should, if possible, be Dr Neil Berry, who previously assessed the appellant on 1 November 2011.”

INTRODUCTION

This appeal is against a decision of a Senior Arbitrator dismissing the proceedings, pursuant to s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), on the basis that they were misconceived and lacking in substance. The proceedings involve a claim for further lump sum compensation, which Luis Guzman (Mr Guzman/the appellant) seeks to have referred to an Approved Medical Specialist (AMS) for assessment pursuant to Pt 7 of Ch 7 of the 1998 Act. For reasons which follow, the appeal succeeds.

BACKGROUND

Mr Guzman developed problems in his right shoulder and cervical spine in about the late 1990s, when working with TNT Equipment. He resigned that employment, and made a claim for compensation. He was subsequently employed for short periods with other companies, the last of which was Trade West Pty Ltd (Trade West/the respondent). He said that his symptoms “seemed to deteriorate a little” before he was retrenched by Trade West, in August 2006.
Mr Guzman was assessed by Dr Bodel, orthopaedic surgeon, at the request of his solicitors. Dr Bodel, reporting on 15 March 2011, said that the “nature and conditions” of Mr Guzman’s duties with Trade West were a substantial contributing factor by way of aggravation, of pre-existing pathology. Dr Bodel assessed Mr Guzman as suffering whole person impairment (WPI) of 6% in respect of the cervical spine, and 5% in…

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 Guzman v Trade West Pty Limited 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: [2017] NSWWCCPD 44
Decision Date: 23 October 2017

CaseChat Overview and Summary

In the case of Guzman v Trade West Pty Limited, the applicant sought to appeal an interlocutory decision made under the Workplace Injury Management and Workers Compensation Act 1998. The applicant, Guzman, had been involved in an industrial injury claim, and the matter had reached a stage where an assessment of whole person impairment was required. The Court was tasked with determining whether leave to appeal an interlocutory decision should be granted and if the proceedings should be dismissed pursuant to section 354(7A) of the Act.

The central legal issue before the Court was whether the applicant was entitled to appeal an interlocutory decision and, if so, whether the proceedings should be remitted for further assessment of whole person impairment. The Court considered the statutory framework provided by sections 352(3A) and 354(7A) of the Act and the principles established in the case of Abou-Haidar v Consolidated Wire Pty Ltd and associated authorities.

The Court found that the statutory provisions allowed for leave to appeal an interlocutory decision in certain circumstances. It was determined that the case at hand met the criteria for such an appeal. The Court also considered the principle of bifurcation as articulated in Abou-Haidar and concluded that it was appropriate to remit the matter for a further assessment by an Approved Medical Specialist, specifically Dr Neil Berry, who had previously assessed the applicant. The Court revoked the existing Certificate of Determination and issued a new direction for the assessment of whole person impairment.

The Court granted leave to appeal and remitted the matter for reassessment, specifying that Dr Neil Berry should conduct the assessment if possible. This decision provided clarity on the procedural rights of the applicant and ensured that the appropriate assessment of the injury was conducted in accordance with the legislative framework.

Orders

Orders of the court

1. Leave to appeal is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.

2. The Certificate of Determination dated 8 June 2017 is revoked, and the following decision is made in its place:

“1. The matter is remitted to the Registrar, for referral to an Approved Medical Specialist, to assess whole person impairment (cervical spine and right upper extremity - shoulder), resulting from injury on 1 August 2006.

2. The Approved Medical Specialist is to have access to the material that was in evidence before the Senior Arbitrator.

3. The Approved Medical Specialist should, if possible, be Dr Neil Berry, who previously assessed the appellant on 1 November 2011.”

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.