Lotos Concretors Pty Ltd v Mitchell

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lotos Concretors Pty Ltd v Mitchell [2018] NSWWCCPD 16
APPELLANT:	Lotos Concretors Pty Ltd
RESPONDENT:	Nathanial Lee Mitchell
INSURER:	AAI Limited trading as GIO General Limited
FILE NUMBER:	A1-1982/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	24 October 2017
DATE OF APPEAL HEARING:	4 April 2018
DATE OF APPEAL DECISION:	27 April 2018
SUBJECT MATTER OF DECISION:	Extension of time to appeal: r 16.12 of the Workers Compensation Commission Rules 2011, monetary threshold to appeal: subss 352(1) and (3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), appeal of an interlocutory decision: s 352(3A) of the 1998 Act, effect of s 66A complying agreement and the principles to be applied, reconsideration pursuant to s 350(3) of the 1998 Act, application of J C Equipment Hire Pty Ltd v Registrar, Workers Compensation Commission (NSW) [2008] NSWCA 43, Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCCA 231 and Manpower Pty Ltd v Harris [2011] NSWWCCPD 10, estoppel on the basis of Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 and Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, procedural fairness: Muin v Refugee Review Tribunal [2002] HCA 30; 90 ALR 601
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr B McManamey, instructed by Moray & Agnew
Respondent:	Mr L Morgan, instructed by KQ Lawyers
ORDERS MADE ON APPEAL:	1. The time for bringing the appeal is extended to 28 November 2017, pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011. 2. Leave to appeal is granted, to the extent that it is necessary, pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 3. The Certificate of Determination dated 24 October 2017 is amended by deleting the order at [1]. 4.     The Certificate of Determination dated 24 October 2017 is otherwise confirmed.

INTRODUCTION

1. This matter involves an application by a worker for an assessment by an Approved Medical Specialist (AMS) of his level of permanent impairment.[1] The assessment is relevant to whether the threshold for a work injury damages claim is achieved (s 313 of the Workplace Injury Management and Workers Compensation Act 1998 [the 1998 Act]), and whether the worker suffers a degree of permanent impairment greater than 20% (making him a worker with high needs – s 32A of the Workers Compensation Act 1987 [the 1987 Act]). 

   [1] Application for Assessment by an Approved Medical Specialist, registered 24 April 2017 (Application).

BACKGROUND

1. Nathaniel Mitchell started working with Lotos Concretors Pty Ltd (Lotos) performing building work, in about 1997. Mr Mitchell, in his statement dated 3 August 2017, identifies three specific injuries he states he suffered in the employ of Lotos:[2]

   (a)On 23 June 1997, he twisted his left knee while working on steel in a trench. He suffered a lateral meniscal tear, and underwent an arthroscopic…