Transfield Pty Ltd v Zuniga
[2004] NSWWCCPD 38
•28 June 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Transfield Pty Ltd v Zuniga [2004] NSW WCC PD 38
APPELLANT: Transfield Pty Ltd
RESPONDENT: Segundo Zuniga
INSURER:Corporate Management Services (Australia) Pty Ltd
FILE NUMBER: WCC 224-02
DATE OF ARBITRATOR’S DECISION: 8 December 2003
DATE OF APPEAL DECISION: 28 June 2004
SUBJECT MATTER OF DECISION: Medical Appeal Panel Determination.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Acting President
HEARING:On the papers.
REPRESENTATION: Appellant: Hunt & Hunt Solicitors
Respondent: Villari & Co, Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of the appeal.
THE APPEAL
On 24 December 2003 Transfield Pty Ltd (‘the Appellant Insurer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 December 2003.
The Respondent to the Appeal is Segundo Zuniga (‘the Respondent Worker’).
The appeal was referred to me for review on 28 June 2004.
This appeal concerns a decision of an Arbitrator and a Medical Appeal Panel, in relation to Mr Zuniga’s claim for lump sum compensation and payment of hearing aids, as a result of hearing loss, suffered through his employment.
An Approved Medical Specialist (‘AMS’) assessed Mr Zuniga and a Medical Assessment Certificate was issued on 5 August 2002. The AMS was of the view that he could not assess Mr Zuniga’s hearing loss on the data available. Mr Zuniga appealed to a Medical Appeal Panel, which, on 20 October 2003, revoked the Medical Assessment Certificate and issued a new one. The Panel assessed Mr Zuniga as having a total percentage loss of industrial deafness of 10.7%.
On 8 December 2003 a Commission Arbitrator issued a Certificate of Determination of the dispute, in terms that accorded with the determination of the Medical Appeal
The Appellant Insurer seeks to appeal against the Arbitrator’s determination, claiming that the total binaural hearing loss should properly have been assessed at 1.8%.
The Respondent Worker submits that the Arbitrator did not err in making the determination, as he was bound by the assessment of the Medical Appeal Panel. The Respondent argues that the Panel’s finding on all issues is final and not subject to appeal to a Presidential Member.
The issue in dispute in the appeal is whether the medial assessment of Mr Zuniga’s hearing loss has been correctly assessed.
The parties have consented to the determination of the appeal on the papers, without the holding of a formal hearing (Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
Appeals against the decision of Arbitrators in the Commission are governed by section 352 of the 1998 Act. The Arbitrator’s decision meets the threshold requirement of s352(2) and leave to appeal is granted.
The decision of an AMS, and a Medical Appeal Panel, in relation to the degree of permanent impairment of the worker as the result of the injury and the nature and extent of hearing loss suffered by a worker, is final and binding on the Commission (section 326 of the 1998 Act).
There is no appeal against the decision of a Medical Appeal Panel, to a Presidential Member of the Commission.
In this matter the Appellant purports to appeal against the determination of the Arbitrator, dated 8 December 2003. However the submissions made on the appeal challenge the assessment of the AMS and the Medical Appeal Panel.
The Appellant Insurer’s submission that the Arbitrator is entitled to reduce the degree of permanent impairment as a result of previous injury (section 323 of the 1998 Act) is misguided. This is a matter for the AMS and the Medical Appeal Panel to determine in accordance with WorkCover Guidelines. In this matter the Medical Appeal Panel has made an assessment of 0% pre-existing loss. The Panel also assessed 6.1% loss due to presbycusis.
In my view the appeal is misconceived. I have no jurisdiction to review a decision of a Medical Appeal Panel. To the extent that the appeal concerns the decision of the Arbitrator, based on and entirely in accordance with the opinion of the Panel, the decision of the Arbitrator is confirmed.
DECISION
There decision of the Arbitrator is confirmed. The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
28 June 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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