| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 | |
| APPELLANT: | Kelly O’Callaghan | |
| RESPONDENT: | Energy World Corporation Ltd | |
| INSURER: | Employers Mutual NSW Ltd | |
| FILE NUMBER: | A1-886/13 | |
| ARBITRATOR: | Mr J Harris | |
| DATE OF ARBITRATOR’S DECISION: | 14 September 2015 | |
| DATE OF APPEAL DECISION: | 5 January 2016 | |
| SUBJECT MATTER OF DECISION: | Application for reconsideration of consent orders; whether any “compensation” at issue on appeal; monetary threshold to appeal not satisfied; alleged deterioration in claimant’s condition after assessment by Approved Medical Specialist; appeal against Approved Medical Specialist’s assessment because of alleged deterioration; whether deterioration must relate to the body part assessed by original Approved Medical Specialist or is at large; ss 352(3)(a) and 327(3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998; application of Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 322 and Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149 | |
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Slater and Gordon |
| Respondent: | Goldbergs | |
| ORDERS MADE ON APPEAL: | The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal. | |
BACKGROUND
This appeal concerns a challenge to an Arbitrator’s refusal to set aside consent orders under the reconsideration power in s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (unless otherwise stated, all references to legislation in this decision are to the 1998 Act). To understand the relevance of the refusal, and to give context to the appeal, it is necessary to set out the procedural background in some detail.
On 7 January 2011, the appellant worker, Kelly O’Callaghan, suffered various injuries when she fell in the course of her employment with the respondent, Energy World Corporation Ltd. On that day, she saw her general practitioner, Dr Garagounis, who diagnosed a soft tissue injury to the cervical spine, upper thoracic spine, left wrist and hand, and sacral area. She submitted a claim for compensation and the insurer initially accepted liability.
On 28 June 2012, Dr Peter Giblin, orthopaedic surgeon, examined Ms O’Callaghan at the request of her solicitors. In his medicolegal report of 3 July 2012, he recorded that Ms O’Callaghan reported the incident, saw her local doctor and had x-rays of her neck and hand, which were sore. He took a history that, after about two weeks off work, Ms O’Callaghan returned to work on reduced duties for about a month and then resumed full time normal duties, though her symptoms, which were predominantly in her low back and coccyx area, had not fully resolved.
Ms O’Callaghan complained to Dr Giblin of having a constant back pain with intermittent sharp stabbing pains in the coccygeal area. Dr Giblin recorded that the symptoms in her neck, thoracic spine and left wrist had “no [sic] resolved”. On examination,…
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- Case
- [2016] NSWWCCPD 1
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework and relevant case law to determine the scope of the term "deterioration" in the context of workers compensation appeals. It was necessary to establish whether the deterioration in the claimant's condition needed to relate specifically to the body part assessed by the Approved Medical Specialist or could be considered more broadly. The court referenced the decisions in Aircons and Riverina Wines, which had outlined the requirements for meeting the monetary threshold and the nature of permissible appeals under the Act. The court found that the deterioration, while significant, did not affect the body part assessed by the original Approved Medical Specialist, and therefore, did not meet the criteria for reconsideration or appeal under the statutory provisions.
Consequently, the court concluded that the monetary thresholds in section 352(3) of the Act had not been met. Given this, the claimant did not have the right to appeal the decision of the Approved Medical Specialist. The application for reconsideration was dismissed, and the consent orders remained in effect. The court's decision underscored the importance of adhering to the statutory requirements and the need for deterioration to be directly related to the assessed body part to warrant an appeal.
Orders
Orders of the court
The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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