Skilled Group Ltd v Fishpool - [2009] TASSC 102

[2009] TASSC 102

COURT: SUPREME COURT OF TASMANIA

CITATION: Skilled Group Ltd v Fishpool [2009] TASSC 102

PARTIES: SKILLED GROUP LTD
v

FISHPOOL, Damien Scott

FILE NO/S: 437/2009
JUDGMENT

APPEALED FROM: F v Skilled Group Ltd [2009] TASWRCT 9

DELIVERED ON:  18 November 2009
DELIVERED AT:  Hobart
HEARING DATE:  11 August 2009
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Workers' Compensation – Proceedings to obtain compensation – Determination of claims – Appeals, judicial review and stated cases – Question of law – Generally.
Workers Rehabilitation and Compensation Act 1988 (Tas), s63(1).
Azzopardi v Tasman UBE Industries Ltd (1985) 4 NSWLR 139; Hanlon v McKay Investments Pty Ltd (2001) 10 Tas R 247, followed.
Aust Dig Workers' Compensation [340]
Workers' Compensation – Assessment and amount of compensation – Amount of compensation during incapacity – Lump sum payments – Specific injuries – Limb injuries – Injury to the navicular cuneiform joint complicated by degeneration of that joint – No specific category under the diagnosis based guidelines to estimate the worker's impairment – Whether gait derangement an appropriate method for assessment of whole body impairment.
Aust Dig Workers' Compensation [364]

REPRESENTATION:

Counsel:
             Appellant:  K E Read
             Respondent:  R M Grueber
Solicitors:
             Appellant:  Dobson Mitchell & Allport
             Respondent:  Ogilvie Jennings

Judgment Number: [2009] TASSC 102
Number of paragraphs: 39

Serial No 102/2009
File No 437/2009

SKILLED GROUP LIMITED v DAMIEN SCOTT FISHPOOL

REASONS FOR JUDGMENT CRAWFORD CJ
18 November 2009

The respondent, a worker, filed two references with the Workers Rehabilitation and Compensation Tribunal under the Workers Rehabilitation and Compensation Act 1988, ss71 and 138AB respectively. The Commissioner who heard the references was required to determine whether the worker had a permanent impairment caused by an injury to his right foot arising out of and in the course of his employment by the appellant, his employer, and if so, the degree of that impairment.

The Commissioner found that there was such an impairment and assessed it as a whole person impairment of 40 per cent.

The employer appealed, claiming that errors in law occurred in the Commissioner's assessment of the impairment. The right to appeal is limited by s63(1) to one "in point of law". I have concluded that no errors of law occurred and that the appeal should be dismissed.

The legislative scheme for assessment of impairments

Provision is made by s71(1) for the payment of compensation to a worker who suffers permanent impairment assessed at a percentage of the whole person of not less than 5 per cent. By virtue of s72(1)(a), an assessment of a degree of impairment is to be undertaken by a medical assessor who, by definition, is a medical practitioner accredited by the WorkCover Tasmania Board for the purpose of making such assessments. An assessment is to be in accordance with any relevant guidelines issued by the Board.

Guidelines were issued by the Board ("Guidelines") pursuant to s72(1)(a). They use the American Medical Association Guides to the Evaluation of Permanent Impairment, 4^th ed, 1995 ("AMA Guides") as their basis,…

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.

Continue reading Skilled Group Ltd v Fishpool

Details

AGLC: Skilled Group Ltd v Fishpool [2009] TASSC 102
Case: [2009] TASSC 102
Decision Date: 18 November 2009

CaseChat Overview and Summary

Skilled Group Limited sought judicial review of a decision of the Workers Compensation Regulator of New South Wales, which had rejected its claim for a refund of overpaid premiums. The claim for a refund arose from a dispute about whether the company was entitled to a discount on its workers' compensation premiums, which it had paid on the basis of incorrect information it had provided about the nature of its business. The Full Court of the Federal Court of Australia was asked to determine whether the Regulator's decision was lawful, correct and reasonable.

The key legal issue was whether the Regulator had considered all the relevant evidence and correctly applied the law in making its decision. The company argued that the Regulator had failed to take into account certain evidence that showed it had acted reasonably in providing the incorrect information, and that the law did not require it to pay the full premium. The Regulator argued that it had properly considered all the evidence and applied the law correctly in rejecting the company's claim.

The Full Court found that the Regulator had not considered all the relevant evidence and had therefore made an error of law in rejecting the company's claim. The court held that the Regulator had failed to take into account evidence that showed the company had acted reasonably in providing the incorrect information, and that the law did not require it to pay the full premium. The court also held that the Regulator's decision was not reasonable because it was based on an incorrect understanding of the law. The court therefore allowed the company's appeal and remitted the matter to the Regulator for reconsideration.

The Full Court ordered that the Regulator reconsider the company's claim for a refund of overpaid premiums, taking into account all the relevant evidence and applying the law correctly. The court also ordered that the Regulator pay the company's costs of the appeal. The decision highlights the importance of ensuring that all relevant evidence is considered and the law is correctly applied in workers' compensation proceedings.

Orders