Regency Realty Pty Ltd v Arzoumani - [2024] NSWPIC 128

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Regency Realty Pty Ltd v Arzoumani [2024] NSWPIC 128
APPLICANT/RESPONDENT ON APPEAL:	Anita Arzoumani
RESPONDENT/APPELLANT:	Regency Realty Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	18 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the applicant suffered injury in 2015; application for medical assessment of threshold based on impairment of right elbow, right wrist, left elbow and skin; referral to Medical Assessor (MA) specified left and right upper extremity and skin; assessed by MA at 15% which included an assessment of the left wrist; employer appealed on ground that left wrist was not part of medical dispute before the MA; applicant then discontinued proceedings in an attempt to prevent the appeal from proceeding; matter had been finally determined when medical assessment certificate issued as this was a threshold matter; discontinuance of no effect as proceedings had been finally determined under Rule 76 of the Personal Injury Commission Rules 2021; alternatively, the discontinuance did not affect the appeal from proceeding; applicant’s request to stay employer’s appeal refused; no reconsideration application made by worker as evidence not available; application to include left wrist raises liability issue requiring determination by a Member; State of New South Wales v Bishop applied; power to make a stay not identified; worker asserted that left wrist was within the referral and could be assessed; discussion of Skates v Hills Industries Ltd, Secretary v Department of Education v Connolly, and Scone Race Club Ltd v Cottom; no claim and no medical dispute concerning the left wrist; employer’s ground of appeal capable of being made out under section 327(4); Held – stay refused; appeal referred to Medical Appeal Panel.
DETERMINATIONS MADE:	The Commission finds and orders: Finding 1. The notice of discontinuance filed on 8 December 2023 had no effect as the proceedings were finally determined within the meaning of Rule 76 of the Personal Injury Commission Rules, 2021. Orders 2. The ground of appeal is capable of being made out under s 327(4) of the Workplace Injury Management & Workers Compensation Act, 1998. An Appeal Panel will be constituted to determine the Appeal. 3. The application by the respondent for a stay of the appeal is rejected.

STATEMENT OF REASONS

BACKGROUND

Ms Anita Arzoumani (the worker) suffered injury on 10 August 2015 in the course of her employment with Regency Realty Pty Ltd (the employer).
Dr Soo was qualified by the worker and provided a report dated 22 December 2021. Dr Soo assessed whole person impairment (WPI) of the right elbow, right wrist, left elbow and skin with a combined WPI of 16%.
On 27 March 2023 the worker’s solicitor wrote to the insurer noting the assessment of Dr Soo who “provided an assessment of 16% WPI” and stated:
“Would you please acknowledge that our client now satisfies the threshold of at least 11% WPI and her entitlement to claim treatment expenses will continue up to at least 23 June…

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.

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Details

Case: [2024] NSWPIC 128
Decision Date: 18 March 2024

CaseChat Overview and Summary

Regency Realty Pty Ltd, the employer, was involved in a dispute with Arzoumani, the employee, regarding a medical assessment of the employee’s impairment following a workplace injury. The case was heard by the Industrial Court of New South Wales. The primary issue was whether the employer’s appeal against the medical assessment should proceed, particularly concerning the inclusion of the left wrist in the assessment. The employer argued that the left wrist was not part of the original dispute and was improperly included in the medical assessment. The employee, on the other hand, contended that the left wrist was within the scope of the referral and should be assessed.

The court needed to determine if the employee's discontinuance of the proceedings had any impact on the employer's appeal, considering the final determination of the matter once the medical assessment certificate was issued. Additionally, the court had to decide if the employer's ground for appeal was valid and if the appeal should be stayed or referred to a Medical Appeal Panel. The court considered relevant precedents, including State of New South Wales v Bishop, Skates v Hills Industries Ltd, Secretary v Department of Education v Connolly, and Scone Race Club Ltd v Cottom, to understand the scope of the referral and the proper procedure for handling the appeal.

The court found that the proceedings had been finally determined when the medical assessment certificate was issued, rendering the employee's attempt to discontinue the proceedings ineffective. Furthermore, the court held that the employer's ground for appeal had a reasonable prospect of success under section 327(4) of the Workplace Injury Management and Workers Compensation Act 1998. Consequently, the court refused the employee's request to stay the appeal and referred the appeal to the Medical Appeal Panel for further consideration.

Orders