Smith v NSW Police Force - [2013] NSWWCCPD 61

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Smith v NSW Police Force [2013] NSWWCCPD 61
APPELLANT:	Kateryna Smith
RESPONDENT:	NSW Police Force
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-12055/12
ARBITRATOR:	Mr R Parsons
DATE OF ARBITRATOR’S DECISION:	2 August 2013
DATE OF APPEAL DECISION:	12 November 2013
SUBJECT MATTER OF DECISION:	Appeal against decision of Registrar acting as an Arbitrator; circumstances in which a Medical Assessment Certificate can be revoked on appeal to a Presidential member; misconceived appeal; s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Kim Smith & Associates
Respondent:	Hicksons
ORDERS MADE ON APPEAL:	1. The appeal is dismissed under s 354 (7A)(b) of the 1998 Act 2. No order as to costs.

INTRODUCTION

This matter concerns a purported appeal from a decision of the Acting Registrar, acting as an Arbitrator, in respect of a Certificate of Determination wherein orders were made in accordance with a valid Medical Assessment Certificate, in circumstances where the only issues in dispute concern whether the worker’s permanent impairment was fully ascertainable and the degree of permanent impairment in respect of an accepted injury.

BACKGROUND

The appellant Kateryna Smith (Ms Smith) was employed by the respondent the NSW Police Force as a senior constable.
Ms Smith alleges that as a result of repeated exposure to traumatic incidents in the course of her employment, she suffered a psychiatric or physiological disorder.
On 9 May 2012, through her solicitors Kim Smith and Associates, Ms Smith made a claim for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). She claimed $28,600 in respect of 19 per cent whole person impairment. The letter of claim did not identify her alleged injury, however it is reasonable to infer that the claim related to the condition of “chronic Post-Traumatic Stress Disorder in association with Major Depressive Disorder” as that was the diagnosis made by Dr S Smith in a report of 14 February 2012, upon which she relied. Ms Smith claimed the maximum sum of $50,000 under s 67 for pain and suffering.
On 19 July 2012, the Police Force’s insurer, Employers Mutual NSW Limited (Employers Mutual) denied liability for the claim alleging that Ms Smith had not suffered a permanent impairment or disability as a result of the alleged injury.
On 25 September 2012 Ms Smith’s solicitors lodged an Application to Resolve a Dispute on her behalf in the Commission. She claimed the lump sum compensation in accordance with the demand referred to at [4] due to “Repeated exposure to traumatic incidence [sic] serving as a NSW Police Officer”.
On 30 October 2012, Hicksons lawyers filed a Reply to the Application. Under Pt 3 of the Application – “Matters in Dispute” the Police Force submitted that the dispute was appropriate for referral to an Approved Medical Specialist (AMS) “for a determination as…

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 Smith v NSW Police Force

Details

AGLC: Smith v NSW Police Force [2013] NSWWCCPD 61
Case: [2013] NSWWCCPD 61
Decision Date: 12 November 2013

CaseChat Overview and Summary

In the case of Smith v NSW Police Force, the plaintiff, Mr Smith, appealed a decision made by a Registrar acting as an Arbitrator. The dispute centred on the revocation of a Medical Assessment Certificate, which was a crucial aspect of Mr Smith's workers' compensation claim. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issue for the tribunal was to determine whether the Registrar's decision to revoke the Medical Assessment Certificate was lawful and whether the appeal to the tribunal was misconceived. The tribunal had to consider the grounds upon which the appeal was based and whether those grounds were sufficient to warrant a review of the Registrar's decision. Furthermore, the tribunal needed to examine the specific provisions of s 354(7A)(b) of the Workplace Injury Management and Workers Compensation Act 1998, which outlined the circumstances in which a Medical Assessment Certificate could be revoked.

The tribunal found that the appeal was misconceived as it did not meet the criteria for review under s 354(7A)(b) of the 1998 Act. The tribunal concluded that the Registrar's decision was based on valid grounds and that there was no error of law or material irregularity in the process. Consequently, the appeal was dismissed, and no order was made as to costs. The tribunal's decision was based on a careful analysis of the evidence and legal provisions, ensuring that the appeal process was adhered to appropriately.

Orders

Orders of the court

1. The appeal is dismissed under s 354 (7A)(b) of the 1998 Act

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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