Singh v B & E Poultry Holdings Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52
APPELLANT:	Jasbir Singh
RESPONDENT:	B & E Poultry Holdings Pty Ltd
INSURER:	AAI Ltd trading as GIO – Agent for Insurance for NSW
FILE NUMBER:	A1-2440/18
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	26 July 2018
DATE OF APPEAL DECISION:	3 December 2018
SUBJECT MATTER OF DECISION:	Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – leave to appeal an interlocutory decision, s 352(6) of the 1998 Act – admission of fresh or additional evidence on appeal, s 322A of the 1998 Act – one assessment of the degree of permanent impairment, s 329 of the 1998 Act – application for further assessment by an Approved Medical Specialist
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Buttar, Caldwell & Co
Respondent:	Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal an interlocutory decision is granted pursuant to section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2.    The Arbitrator’s decision that the appellant was not, in the circumstances, entitled to obtain a new Medical Assessment Certificate is confirmed. 3.    The Arbitrator’s decision dated 26 July 2018 is otherwise revoked. 4.    The matter is remitted to the same Arbitrator, to determine any remaining issues consistently with these reasons.

INTRODUCTION AND BACKGROUND

1. Jasbir Singh (the appellant) suffered injury to his back on 25 February 2013, lifting in the course of his employment as a delivery driver with B & E Poultry Holdings Pty Ltd (the respondent). He came to surgery (L5/S1 microdiscectomy) on 11 June 2014, at the hands of Professor Van Gelder. He subsequently tried various forms of part-time, alternative duties, with the respondent, at a laundry and taxi driving. The respondent accepted liability for the claim.[1]

   [1] Appellant’s statement dated 7 May 2018, Application to Resolve a Dispute (ARD), pp 1–3.

2. The appellant was examined by Dr Bodel, an orthopaedic surgeon, who in a report dated 26 October 2015 assessed whole person impairment (WPI) relating to the lumbar spine at 13 per cent.[2] The appellant was examined on the respondent’s behalf by Dr Casikar, a neurosurgeon, who in a report dated 7 January 2016 assessed WPI at 10 per cent.[3] The respondent denied the permanent impairment claim in a s 74 notice dated 12 January 2016, on the basis that the appellant’s permanent impairment was not greater than 10 per cent.[4] The appellant commenced proceedings in the Commission, number 1870/16, and was examined by an Approved Medical Specialist (AMS), Dr Wong, who issued a Medical Assessment Certificate (MAC) dated 29 June 2016.[5] Dr Wong assessed WPI at 14 per cent. The appellant lodged an Election to Discontinue Proceedings on 1 July 2016, bringing those proceedings to an end.[6] The MAC was not the subject of appeal. No Certificate of Determination was issued in those proceedings.

   [2] Reply, pp 24–30.