United Construction Pty Ltd v Maketic - [2003] WASCA 138

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: UNITED CONSTRUCTION PTY LTD -v- MAKETIC [2003] WASCA 138

CORAM: ANDERSON J
PARKER J
TEMPLEMAN J

HEARD: 10 DECEMBER 2002

DELIVERED : 25 JUNE 2003

FILE NO/S: FUL 60 of 2002

BETWEEN: UNITED CONSTRUCTION PTY LTD
Appellant (Applicant)
AND
SENAD MAKETIC
Respondent (Respondent)

Catchwords:

Workers' compensation - Medical assessment panel - Determination of panel - "final and binding"

Estoppel - Judgment in District Court deciding issue between parties - Issue as to workman's capacity for work - Effect on proceedings under Workers' Compensation and Rehabilitation Act 1981 for review of weekly payments

Words and phrases - "final and binding"

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 84ZM, s 145E(5), s 145F

Result:

Appeal allowed
Decision of the Compensation Magistrate's Court set aside
Application under s 62 Workers' Compensation and Rehabilitation Act 1981 granted
Application under s 61(3) dismissed
Weekly compensation payments terminated

Category: A

Representation:

Counsel:

Appellant (Applicant) : Mr D W Williams
Respondent (Respondent) : In person

Solicitors:

Appellant (Applicant) : McAuliffe Williams & Partners
Respondent (Respondent) : In person

Case(s) referred to in judgment(s):

Blair v Curran (1939) 62 CLR 464
Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Ex parte Juras, unreported; FCt SCt of WA; Library No 960637B; 7 November 1996
Kuligowski v Metrobus (2002) 26 WAR 137
Maketic v Osmanbasic & Ors [2001] WADC 106
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Radcliffe v Pacific Steam Navigation Co [1910] 1 KB 685
Ramsay v Gramophone Co Ltd [1936] 2 All ER 752
Re Bannon; Ex parte Suleski [2001] WASCA 289
Re Skirving; ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998
Rock Engineering v Pozun, unreported; CM Ct, Packington CM; No 76/96; 28 January 1997
Sharman v Holliday & Greenwood Ltd [1904] 1 KB 235
Waddington v Silver Chain Association [1998] 20 WAR 269

Case(s) also cited:

Heat Containment Industries v Kimberley (1990) 2 WAR 47
McNair v Press Offshore Ltd (1997) 17 WAR 191
Summit Homes v Lucev (1996) 16 WAR 566
Tipper v Orbital Engine Co Pty Ltd, unreported; SCt of WA; Library No 930066; 15 February 1993
United Construction Pty Ltd v Gajic (1998) 19 SR(WA) 362
Weeks v Harbourworks Clough [1985] WAR 327

JUDGMENT OF THE COURT: This is an appeal by leave on a question of law pursuant to s 84ZW of the Workers’ Compensation and Rehabilitation Act 1981 ("the Act") from the dismissal of Applications to terminate weekly payments of compensation to the respondent by order made by the Compensation Magistrate’s Court on 17 January 2002.

BACKGROUND

The respondent, Mr Maketic had been injured in a motor vehicle accident on 15 June 1995 when, as a passenger in a vehicle which hit the rear of another vehicle, he claimed to have suffered injuries in particular to the neck, shoulders, back, left eye and right wrist. Subsequently, on…

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: [2003] WASCA 138
Decision Date: 25 JUNE 2003

CaseChat Overview and Summary

In the case of United Construction Pty Ltd v Maketic, the issue at hand was whether the Workers' Compensation and Rehabilitation Act 1981 ("the Act") allowed for an estoppel to be raised in proceedings for the review of weekly payments, where a medical assessment panel had already made a determination that was intended to be "final and binding". The appellant, United Construction Pty Ltd, sought to terminate weekly compensation payments to the respondent, Mr Maketic, who had been injured in a motor vehicle accident and subsequently in the course of his employment. The appellant contended that Mr Maketic had fully recovered his capacity for work, while the respondent argued that he was still incapacitated.

The legal issues before the court were whether the determination of the medical assessment panel was indeed "final and binding", and if so, whether this precluded the appellant from raising the issue of Mr Maketic's capacity for work in subsequent proceedings. The court had to consider the language of the relevant sections of the Act, particularly section 145F which provides for reconsideration of a panel's determination, and the implications of the phrase "final and binding".

The court found that the determination of the medical assessment panel was not "final and binding" in the context of the proceedings for the review of weekly payments. The court held that the phrase "final and binding" did not prevent the reconsideration of the issue of Mr Maketic's capacity for work in light of new evidence or changed circumstances. The court reasoned that the Act did not intend to preclude the possibility of reviewing a panel's determination in proceedings related to weekly compensation payments. This interpretation was consistent with the purpose of the Act to provide for fair and just resolutions of disputes between employers and employees regarding workers' compensation.

The court dismissed the appeal and affirmed the decision of the Compensation Magistrate’s Court that the Applications to terminate weekly payments were not successful. The court held that the determination of the medical assessment panel did not preclude the appellant from arguing the issue of Mr Maketic's capacity for work in the proceedings for the review of weekly payments. The court found that the appellant's contention that Mr Maketic had fully recovered his capacity for work was not substantiated by the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PARKER J

JUDGMENT OF THE COURT: This is an appeal by leave on a question of law pursuant to s 84ZW of the Workers’ Compensation and Rehabilitation Act 1981 ("the Act") from the dismissal of Applications to terminate weekly payments of compensation to the respondent by order made by the Compensation Magistrate’s Court on 17 January 2002. The respondent, Mr Maketic had been injured in a motor vehicle accident on 15 June 1995 when, as a passenger in a vehicle which hit the rear of another vehicle, he claimed to have suffered injuries in particular to the neck, shoulders, back, left eye and right wrist. Subsequently, on 2 February 1998 he was injured in the course of his then employment as a boilermaker/welder with the appellant, United Construction Pty Ltd. Mr Maketic was cutting off a section of steel pipe with a propane torch. The pipe fell upon two tyres, then bounced and struck him in the left knee injuring the knee. Mr Maketic also claimed that in this incident he fell, or was pushed by the pipe, backwards onto a steel table with consequential back and neck pain. He continued to work for a time after the work accident, but eventually ceased work in April 1998 due to increasing problems arising from the injury to his knee. On 28 April 1998 an arthroscopy was performed on the knee. The appellant accepted that the respondent had suffered a compensable injury at work. Weekly compensation payments were made. On 13 September 1999, the appellant lodged an application pursuant to s 157 of the Act that the respondent undergo vocational rehabilitation further, or alternatively, that weekly compensation payments be discontinued or reduced pursuant to s 62 of the Act. It was the appellant's main contention that Mr Maketic had fully recovered his capacity for work as a boilermaker/welder. In accordance with s 84ZH of the Act, following unsuccessful conciliation, that application was referred to a review officer. Finding there were conflicting claims and medical reports, the review officer referred to a medical assessment panel (the "panel") the question:"What is the worker’s capacity for work?" S84ZH(1) enables a review officer to refer to a panel for determination by the panel a question as to –"(a)the nature or extent of a disability;(b)whether a disability is permanent or temporary; or(c)a worker’s capacity for work."The reference in this case was pursuant to par (c). There was no reference pursuant to par (a) or (b) of s 84ZH(1). The panel is required to make a determination in writing and to give reasons for it: s 145E. There is a process by which a determination of a question may be reconsidered by a panel where there is new evidence. Section 145F provides :"145F Review(1)If at least 60 days after the determination is made a person who is affected by the determination satisfies the Director that there is any new evidence that could not have been submitted to the panel and would be likely to affect the determination of the question if it were to be reconsidered by the panel the Director may again refer the question to the panel.(2)The panel may refer to anything that was available to it when previously determining the matter as well as doing anything that it could do if the question were referred to it for determination in the first instance.(3)The panel may vary its previous determination or rescind it and make a new determination.(4)…"

Ratio Decidendi

Legal Principle Established

Established by: PARKER J

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