| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32 | |
| APPELLANT: | Pidcock Panel Beating Pty Ltd | |
| RESPONDENT: | Christopher John Nicolia | |
| INSURER: | QBE Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-5551/16 | |
| ARBITRATOR: | Mr R Bell | |
| DATE OF ARBITRATOR’S DECISION: | 16 February 2017 | |
| DATE OF APPEAL DECISION: | 25 July 2017 | |
| SUBJECT MATTER OF DECISION: | Leave to appeal an ‘interlocutory decision’; s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; referral for a further assessment of the degree of permanent impairment; Sch 8, Pt 2A of the Workers Compensation Regulation 2016 and section 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998, Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Curwoods Lawyers |
| Respondent: | Somerville Laundry Lomax Solicitors | |
| 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 Certificate of Determination dated 16 February 2017 is revoked, and the following order is made in its place: “The proceedings are dismissed.” | |
INTRODUCTION
This appeal involves questions going to the referral of the worker for further medical assessment of permanent impairment, in reliance on Sch 8, Pt 2A of the Workers Compensation Regulation 2016 (the Regulations), introduced by the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016 (the 2016 Regulation).
BACKGROUND
Christopher John Nicolia (the respondent) was employed by Pidcock Panel Beating Pty Ltd (the appellant) as a manager. He suffered a conceded employment injury involving both knees on 7 August 2008. He claimed lump sum compensation on 26 June 2012, and commenced proceedings no 12543/12 (the earlier proceedings). He was assessed by Dr Oates, an Approved Medical Specialist (AMS) on 14 October 2013. A resultant Medical Assessment Certificate (MAC) dated 25 October 2013 certified 14 per cent whole person impairment in respect of the lower extremities (13 per cent right, 1 per cent left). In an appeal by the respondent to a Medical Appeal Panel, the MAC was confirmed on 11 March 2014. The respondent recovered lump sum compensation in the earlier proceedings, consistent with the MAC, in a Certificate of Determination dated 11 April 2014 (dealing with the s 66 of the Workers Compensation Act 1987 (the 1987 Act) entitlement) and in a s 66A agreement dated 3 June 2014 (dealing with entitlement pursuant to s 67).
The respondent underwent bilateral total knee arthroplasties on 30 October 2015. Dr Harrison, orthopaedic surgeon, reported to the respondent’s solicitors on 5 May 2016, certifying whole person impairment of 30 per cent (right lower extremity), 20 per cent (left lower extremity) and 7 per cent (lumbar spine). This represented a combined permanent impairment of 48 per cent. The respondent’s solicitors made a claim pursuant to s 66 of the 1987 Act, for 48 per cent permanent impairment, on 26 July 2016. The appellant issued…
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- AGLC
- Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32
- Case
- [2017] NSWWCCPD 32
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions and the principles set out in Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56, which established that only one assessment of permanent impairment can be made. The court considered that the Commission had the authority to refer the matter for a further assessment under section 329(1) of the 1998 Act. However, the court held that the Commission had not correctly applied the principles established in Milosavljevic, as it had failed to consider that only one assessment of permanent impairment could be made. The court found that the Commission's decision to dismiss the application was incorrect and that the matter should be referred for a further assessment.
The court granted leave to appeal and revoked the Certificate of Determination dated 16 February 2017. In its place, the court ordered that the proceedings be dismissed. The court's decision clarified the legal principles governing the referral of matters for further assessment of permanent impairment and emphasised the importance of correctly applying the statutory provisions and relevant case law.
Orders
Orders of the court
1. Leave to appeal is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
2. The Certificate of Determination dated 16 February 2017 is revoked, and the following order is made in its place:
“The proceedings are dismissed.”
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
Section 329 of the 1998 Act provides:“329 Referral of matter for further medical assessment or reconsideration(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:(a)the Registrar as an alternative to an appeal against the assessment as provided by section 327, or(b)a court or the Commission.(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.” Section 66(1A) of the 1987 Act provides:“(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.” Section 322A of the 1998 Act provides:“One assessment only of degree of permanent impairment(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.(4) This section does not affect the operation of section 327 (Appeal against medical assessment).” Schedule 8 Pt 2A of the Regulations provides:“Part 2A Special provisions for existing recipients of weekly payments—2012 amendments28A Interpretation (1) Words and expressions used in this Part have the same meaning as in Part 19H of Schedule 6 to the 1987 Act. (2) The following provisions are deemed to be amended to the extent necessary to give effect to this Part: (a)section 39 of the 1987 Act, (b)Part 19H of Schedule 6 to the 1987 Act, (c)section 322A of the 1998 Act. 28B Application and operation of Part (1) This Part takes effect on and from 1 October 2012. (2) This Part applies to an injured worker who is an existing recipient of weekly payments. 28C 5 year limit on weekly payments Section 39 of the 1987 Act (as substituted by the 2012 amending Act) does not apply to an injured worker if the worker’s injury has resulted in permanent impairment and: (a) an assessment of the degree of permanent impairment for the purposes of the Workers Compensation Acts is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or (b) the insurer is satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed). 28D Further permanent impairment assessments (1) This clause applies to an injured worker if the degree of permanent impairment resulting from the worker’s injury is or has been assessed for the purposes of the Workers Compensation Acts. (2) Section 322A of the 1998 Act does not operate to prevent a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act. (3) However, only one further assessment may be made of the degree of permanent impairment resulting from the worker’s injury.”