Matilda Cruises Pty Ltd v Sweeny

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37
APPELLANT:	Matilda Cruises Pty Ltd
RESPONDENT:	Darren Sweeny
INSURER:	GIO Workers Compensation as agent for icare NSW
FILE NUMBER:	A1-488/18
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	22 March 2018
DATE OF APPEAL DECISION:	31 August 2018
SUBJECT MATTER OF DECISION:	Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998: leave to appeal an interlocutory decision; the nature of referral for assessment of the degree of permanent impairment pursuant to clause 11 and Part 2A of Schedule 8 of the Workers Compensation Regulation 2016 (the Regulation); application of clause 28D of Part 2A of Schedule 8 of the Regulation: ‘one further assessment’
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	Santone Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2.     The Arbitrator’s Certificate of Determination dated 22 March 2018 is confirmed.

INTRODUCTION

1. This employer’s appeal raises issues going to s 39 of the Workers Compensation Act1987 (the 1987 Act), and the availability of referral to an Approved Medical Specialist (AMS) pursuant to Pt 2A of Sch 8 of the Workers Compensation Regulation 2016 (the Regulation). For reasons which follow, the appeal does not succeed.

BACKGROUND

1. Darren Sweeny (the respondent) suffered an injury to his right knee, the occurrence of which is not disputed, in the course of his employment on 19 November 2004. He was working as a chef on a cruise vessel operated by Matilda Cruises Pty Ltd (the appellant) when he slipped whilst descending a stairwell. He underwent anterior cruciate ligament reconstruction in about February 2005, together with subtotal medial meniscectomy and microfracture lateral femoral condyle. He suffered aggravations when he attempted to resume work.[1] Apart from an attempted return to part-time work in a service station over a few weeks, he has not worked since about May 2005.[2] The respondent underwent a revisionary anterior cruciate ligament reconstruction on 16 March 2010. He came to a right total knee replacement on 21 December 2017. He subsequently had inpatient rehabilitation for two weeks at Mt Wilga Private Hospital.[3] In his statement dated 11 January 2018, he stated that he was still wearing a knee brace due to instability, and was using “crutches to get around”.[4]   

   [1] Dr Roe’s report 28 March 2008, Dr Patrick’s report 23 September 2016, in Application for Assessment by an Approved Medical Specialist (Application), pp 24, 49–50.

   [2] Dr Pillemer’s Medical Assessment Certificate (MAC) dated 2 May 2012, Application p 66, Dr Pillemer’s MAC dated 24 April 2017, p 3, in Response to Application for Assessment by an Approved Medical Specialist (Response).

   [3] Dr Prendergast’s report dated 9 January 2018, Application p 21.

   [4] Respondent’s statement dated 11 January 2018, Application p 17.

2. The appellant has paid for the respondent’s…