Shankar v Ceva Logistics (Australia) Pty Limited

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18

APPELLANT:

Ram Shankar

RESPONDENT:

Ceva Logistics (Australia) Pty Limited

INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-6336/20

MEMBER:

Mr J Harris

DATE OF MEMBER’S DECISION:

4 December 2020

DATE OF APPEAL DECISION:

16 June 2021

CATCHWORDS:

WORKERS COMPENSATION – leave to appeal an interlocutory decision – monetary threshold to appeal – assessment of permanent impairment – whether a Member can decline to refer a body part for assessment by a medical assessor

PRESIDENTIAL MEMBER:

Acting Deputy President Geoffrey Parker SC

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr B McManamey, counsel

Carroll & O’Dea Lawyers

Respondent:

Mr N Maley, solicitor

Holman Webb Lawyers

ORDERS MADE ON APPEAL:

1.     Leave to appeal is granted.

2.     The Certificate of Determination dated 4 December 2020 is varied as follows:

(a)   Add to paragraph [6] against the heading “Body Parts Referred” after the words “cervical spine” the words “left upper extremity”.

INTRODUCTION

  1. This is an application for leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and if leave is granted, to appeal a decision by an Arbitrator made on 4 December 2020, declining to refer for assessment by an Approved Medical Specialist (AMS) the appellant’s left upper extremity.

  2. For the reasons that follow, leave to appeal is granted. The appeal is allowed.

BACKGROUND

  1. In order to understand the ex tempore decision of the Arbitrator, it is necessary to set out in some detail the appellant’s original claim and the respondent’s response thereto.

  2. The appellant, Mr Shankar, filed an Application to Resolve a Dispute (ARD) in the former Workers Compensation Commission, registered on 2 November 2020.

  3. In the ARD he alleged injury against Ceva Logistics (Australia) Pty Limited (the respondent) as follows:

    (a)    22 October 2010 – cervical spine, right upper extremity – total whole person impairment [WPI] percentage 11%;

    (b)    7 January 2015 – disease injury, and

    (c)    7 July 2015 – cervical spine, left upper extremity and right extremity – WPI 17%.[1]

    [1] ARD, pp 8–9.

  4. The appellant gave the following description of injury:

    “On or around 22 December 2010 the Worker was moving approximately 500 boxes containing brake discs weighing approximately 10kg each. Following this task he started feeling pain in his neck and shoulders.

    On 6 August 2013, the Worker had returned to work and was engaged in picking and packing when he was asked to cut steel bolts approximately 10mm [thick] using a bolt cutter. The bolt cutters provided were either blunt and/or not fit for purpose and as a result the worker was required to apply excessive force on a repetitive basis to complete the task. He noticed pain in his left shoulder, elbow and his neck.

    The worker ceased work on 7 January 2015 as a result of his injuries and increased symptoms.

    It is submitted that the Worker has sustained injury…

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Details
Case
[2021] NSWPICPD 18
Decision Date

CaseChat Overview and Summary

Shankar, a former employee, filed a claim against Ceva Logistics (Australia) Pty Limited, his former employer, seeking compensation for a work-related injury. The dispute centred on the assessment of Shankar's permanent impairment and the employer's liability for the claimed compensation. The case was heard by the Deputy President of the Commission in the context of an interlocutory appeal against an earlier decision by a Senior Arbitrator. The core legal issues before the court were whether the Senior Arbitrator correctly exercised her jurisdiction in dismissing Shankar's claim for lump sum compensation, and whether the Arbitrator had the authority to decline referring a body part for assessment by a medical assessor.

The court found that the Senior Arbitrator erred in dismissing the proceedings based on the perceived persuasiveness of the medical evidence. According to the Workers Compensation Acts, the assessment of a "medical dispute" is reserved for an Accredited Medical Specialist (AMS). The Deputy President noted that it was not within the Senior Arbitrator's jurisdiction to dismiss the claim on the basis of the perceived viability of the permanent impairment claim. The court relied on the High Court's decision in Wingfoot Australia Partners Pty Limited v Kocak, which underscored the role of a Medical Panel to form its own opinion on a medical question, not to choose between competing arguments or opinions. The court further highlighted that the assessment by the AMS is based on their own medical expertise and experience, and cannot be predetermined.

The Deputy President concluded that the Senior Arbitrator made a similar error by implicitly assuming that the evidence of the qualified specialists would prevail, thereby overstepping her jurisdiction. The court held that the Arbitrator did not have the jurisdiction to assess the degree of permanent impairment and, therefore, could not determine that the degree of permanent impairment was 0%. The court set aside the decision of the Senior Arbitrator and remitted the matter for further consideration in light of these findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Deputy President in setting aside the decision of the Senior Arbitrator said this:“59. It was not open to the Senior Arbitrator in the circumstances, to dismiss the proceedings pursuant to s 354(7A)(b), effectively on the basis of a consideration of the persuasiveness of the medical evidence relied on by the appellant, to make the claim for lump sum compensation which gave rise to the ‘medical dispute’. The Workers Compensation Acts reserve assessment of a ‘medical dispute’ to an AMS.” (emphasis added) The High Court in Wingfoot Australia Partners Pty Limited v Kocak[20] said:“The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions ... The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”[20] [2013] HCA 43; 252 CLR 480, [47]. In Guzman, the Deputy President said this:“In a matter where no liability issues are raised, and the remaining issue is one going to assessment of permanent impairment (which requires referral to an AMS) it is difficult to see a basis on which a view could be formed by an arbitrator, consistent with General Steel, that the matter is clearly not reasonably arguable. The assessment by the AMS will be based on not only the evidence of the parties, but also his or her own medical experience and expertise, and cannot be known before it is carried out. The test applied by the Senior Arbitrator was an incorrect one, in that she dismissed the proceedings on the basis of the perceived lack of viability of the permanent impairment claim on quantum, when that was not a matter for her to decide.”[21] (emphasis added)[21] Guzman, [61]. A similar error occurred in this matter. The Arbitrator implicitly assumed that the evidence of the qualified specialists would in the event carry the day. But it is not the views of Dr Wong and Dr Powell that are determinative. Further the Arbitrator had no jurisdiction to assess the degree of permanent impairment and therefore did not have jurisdiction to determine that the degree of permanent impairment was 0%.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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