The Star Entertainment Group Ltd v Samaan - [2023] NSWPICPD 50

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	The Star Entertainment Group Ltd v Samaan [2023] NSWPICPD 50
APPELLANT:	The Star Entertainment Group Ltd
RESPONDENT:	Mamdoh Monir Sabet Samaan
INSURER:	Self-insured
FILE NUMBER:	A1-W1730/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	18 August 2023
ORDERS MADE ON APPEAL:	1. The appellant is granted leave to appeal the Member’s Decision dated 23 August 2022 pursuant to s 352(3A) of the 1998 Act. 2. The time for the lodging of the appellant’s appeal is extended to 23 September 2022 pursuant to s 353(4)(b) of the 1998 Act. 3. The Certificate of Determination dated 23 August 2022, as amended 30 August 2022, is revoked. 4. The matter is remitted to another member in the Workers Compensation Division to hear the dispute in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – referral to a medical assessor for an assessment of permanent impairment – s 293 of the Workplace Injury Management and Workers Compensation Act 1998 – Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L King SC, senior counsel
Hall & Wilcox
Respondent:
Mr J Jobson, counsel
Gergis Solicitors
DECISION UNDER APPEAL
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	23 August 2022, as amended on 30 August 2022

INTRODUCTION AND BACKGROUND

Mamdoh Monir Sabet Samaan, the respondent, was employed by The Star Entertainment Group Ltd, the appellant, as a cleaner. On 9 July 2014 the respondent was working for the appellant and while using a backpack vacuum cleaner, he bent under a table and chairs, suffering injury to his lumbar spine. Whilst the appellant did not contest injury, the appellant subsequently denied ongoing liability for weekly compensation and medical related treatment on 29 June 2015 on the grounds that the effects of the accepted injury had ceased.[1] This denial relied on the independent medical opinion of Dr James Vote, orthopaedic surgeon, who initially diagnosed the respondent with an aggravation of pre-existing degenerative disc disease in the lumbar spine by way of a “probable small central disc prolapse at L4/5”.[2] As of 18 May 2015, some 9 months after the incident, Dr Vote reported that the respondent’s symptoms were “mainly” related to the underlying degenerative condition,[3] and thus, liability was declined by the insurer.
[1] Notice issued pursuant to the since repealed s 74 of the Workplace Injury Management and Workers Compensation Act 1998 in Application to Admit Late Documents (AALD), 14 June 2022, p 1.
[2] Dr Vote’s report dated 14 August 2014, AALD, 14 June 2022, p 8.
[3] Dr Vote’s report dated 18 May 2015, AALD, 14 June 2022, p 22.
The respondent’s employment with the appellant ended in 2016. On 13 May 2020, the respondent underwent spinal surgery, specifically a discectomy, rhyzolysis and decompression at L4/5 and L5/S1 levels, performed by Dr Jaeger.[4] This all took place before the commencement of these proceedings in the Personal Injury Commission (the Commission).
[4]…

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

Case: [2023] NSWPICPD 50
Decision Date: 18 August 2023

CaseChat Overview and Summary

The Star Entertainment Group Ltd was involved in a dispute with Samaan, who had been injured in the course of his employment. The matter was before the New South Wales Court of Appeal, where the central issue was whether the referral to a medical assessor for an assessment of permanent impairment was valid under section 293 of the Workplace Injury Management and Workers Compensation Act 1998. The case was an appeal from a decision of the District Court, which had found that the referral was invalid because it was made after the period for determining compensable injuries had expired.

The legal issue before the court was whether the referral to the medical assessor was valid, given the statutory timeframe within which the referral had to be made. The appeal hinged on the interpretation of section 293 of the Act and whether it permitted a referral to be made outside the timeframe stipulated for determining compensable injuries. The court also considered the implications of the decision in Jaffarie v Quality Castings Pty Ltd, where the Court of Appeal had held that a referral to a medical assessor could be made after the period for determining compensable injuries had expired.

In its judgment, the court held that the referral to the medical assessor was valid. The court found that section 293 of the Act permitted such a referral to be made outside the timeframe for determining compensable injuries, as long as it was made within a reasonable time. The court also noted that the referral was made within a reasonable time and therefore did not constitute a breach of the statutory requirements. The court further found that the decision in Jaffarie v Quality Castings Pty Ltd was applicable to the present case, and that the referral was valid.

The court therefore allowed the appeal and set aside the decision of the District Court. The matter was remitted to the District Court for further consideration in light of the court's decision. The court did not make any orders as to costs.

Orders