Basten JA at [1]; Leeming JA at [43]; McCallum JA at [51]
Decision:
(1) Grant leave to appeal for the purpose of making the following orders:
(i) set aside the decision of the Arbitrator made on 1 November 2019;
(ii) direct that the President, in determining the terms of any referral for a further medical assessment, include the left wrist as a body part to be assessed.
(2) Otherwise dismiss the application for leave to appeal.
(3) Direct that there be no order as to the costs of the application for leave to appeal.
(4) Direct that these orders not be entered until 28 July 2021.
Catchwords:
WORKERS COMPENSATION – referral of medical dispute to approved medical officer – assessment of permanent impairment – whether approved medical officer is confined to an assessment of the body parts and systems specified by the Registrar in the referral form
American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed)
Category:
Principal judgment
Parties:
Mr Anthony Skates (Applicant) Hills Industries Ltd (First Respondent) John Wynyard, Dr James Bodel, Dr David Crocker (Second Respondents) Michael Wright (Third Respondent) Registrar, Workers Compensation Commission of New South Wales (Fourth Respondent) Dr Frank Machart (Fifth Respondent)
Representation:
Counsel: B G McManamey (Applicant) S Blount (First Respondent) Submitting appearances (Second to Fifth Respondents)
Solicitors: Slater Gordon (Applicant) Bartier Perry (First Respondent) Crown Solicitor’s Office (Second to Fifth Respondents)
[This headnote is not to be read as part of the judgment]
The applicant sought leave to appeal from a judgment of the Supreme Court reviewing a decision of the Appeal Panel of the Workers Compensation Commission determining a medical dispute as to the degree of permanent impairment resulting from certain injuries. The issue sought to be raised by the proposed appeal was whether the approved medical specialist (AMS) to whom the medical dispute was initially referred was confined to an assessment of the “body parts” specified in the referral form completed by a delegate of the Registrar of the Workers Compensation Commission.
The applicant had suffered a serious…
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
AGLC
Skates v Hills Industries Ltd [2021] NSWCA 142
Case
[2021] NSWCA 142
Decision Date
CaseChat Overview and Summary
The applicant, Skates, appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a workers compensation matter. The dispute centred on the assessment of permanent impairment by an approved medical officer, specifically whether the officer was restricted to assessing only those body parts and systems identified by the Registrar in the referral form.
The central legal issue before the Court of Appeal was the scope of an approved medical officer's power when assessing a medical dispute under the relevant workers compensation legislation. The court was required to determine whether the referral form prescribed by the Registrar limited the approved medical officer's jurisdiction to the specific impairments listed, or if the officer could consider and assess other impairments that arose from the injury.
The Court of Appeal, in its reasoning, clarified that the purpose of the referral to an approved medical officer is to resolve a "medical dispute". It was held that the Registrar's referral form serves to identify the *existence* of a dispute and the *nature* of the injury, but it does not confine the approved medical officer's assessment to only those specific body parts or systems listed. The officer's role is to assess the *degree* of permanent impairment resulting from the injury, and in doing so, they are entitled to consider all relevant impairments that arise from the injury, even if not explicitly itemised on the referral form. The court found that the primary judge had erred in limiting the scope of the approved medical officer's assessment.
Consequently, the Court of Appeal made orders remitting the proceedings to the President of the Personal Injury Commission of New South Wales to be determined according to law.
Orders
Orders of the court
85.
I am not persuaded that the Court should make all of the orders sought in the amended draft notice of appeal. The applicant proposes that, in place of an order remitting the matter to the Registrar to be determined according to law, this Court should make an order remitting the matter to the Registrar to be determined “in accordance with the law as stated by this Court”. The last clause (“as stated by this Court”) is otiose. The law is as stated by this Court (for the time being at least). The proposed order “confirming” the other orders of the primary judge is also unnecessary. Those orders stand unless set aside. As explained by Basten JA, the proceedings should be remitted to the President of the Personal Injury Commission of New South Wales.