Workers Compensation Nominal Insurer v Arcaba - [2016] NSWSC 1647

Supreme Court

New South Wales

Case Name:	Workers Compensation Nominal Insurer v Arcaba
Medium Neutral Citation:	[2016] NSWSC 1647
Hearing Date(s):	18 August 2016
Date of Orders:	24 November 2016
Decision Date:	24 November 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	(1) Summons dismissed. (2) The Plaintiff is to pay the First Defendant’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – workplace injury – challenge to medical assessment by appeal panel on review of approved medical specialist – prior assessment and appeal – where different assessment by approved medical specialist from assessment by first appeal panel – whether second appeal panel erred in understanding and exercising its jurisdiction – whether errors on the face of the record – errors in verbiage leading nowhere and not resulting in different outcome – approach to review of reasons – whether reasons adequate – obligations of specialist and appeal panel - whether need for specialist and appeal panel to explain differences from earlier assessments – whether decision so wrong as to be perverse – no error shown
Legislation Cited:	Accident Compensation Act 1985 (Vic) Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67; (2014) 66 MVR 124 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 Wingfoot Australia Partners Pty Ltd v Eyup Kocak (2013) 252 CLR 480; [2013] HCA 43
Category:	Principal judgment
Parties:	Workers Compensation Nominal Insurer (Plaintiff) Milenko Arcaba (First Defendant) Medical Appeal Panel of the Workers Compensation Commission of New South Wales consisting of Garth Brown, Dr John Ashwell and Dr Brian Noll (Second Defendant) Registrar of the Workers Compensation Commission of New South Wales (Third Defendant) Brooklyn Labour Pty Ltd (Fourth Defendant)
Representation:	Counsel: J W Dodd (Plaintiff) E Romaniuk SC & E Grotte (First Defendant) Submitting appearances (Second & Third Defendants) No appearance (Fourth Defendant) Solicitors: HWL Ebsworth Lawyers (Plaintiff) NSW Compensation Lawyers (First Defendant) Crown Solicitors Office (Second & Third Defendants) Unrepresented (Fourth Defendant)
File Number(s):	2015/311443

JUDGMENT

The First Defendant (the worker) was injured on a construction site when stripping form work on 3 July 2009. He fell awkwardly onto his knees when a beam suddenly flipped up. In falling and twisting to avoid a three metre drop behind him he injured his lower back, his right shoulder and his neck.
The worker’s employer, Brooklyn Labour Pty Ltd (the Fourth Defendant) was uninsured and as a result the Plaintiff became liable to pay compensation to the worker under the Uninsured Liability Scheme.
On 27 March 2012 the worker made a claim for lump sum benefits pursuant to…

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: [2016] NSWSC 1647
Decision Date: 24 November 2016

CaseChat Overview and Summary

The Workers Compensation Nominal Insurer sought judicial review of a decision by an appeal panel, which reviewed a medical assessment of an injured worker. The dispute centered around the interpretation and application of statutory provisions governing the review of medical assessments in workers compensation claims. The matter was heard in the Federal Court of Australia.

The central legal issues were whether the second appeal panel had correctly understood and exercised its jurisdiction in reviewing the medical assessment, and whether there were any errors on the face of the record that rendered the decision unlawful. The court considered whether the reasons provided by the appeal panel were adequate, and whether the obligations of the approved medical specialist and the appeal panel included explaining any differences from earlier assessments. The court also examined whether the decision was so wrong as to be perverse.

The court found that the appeal panel had correctly understood and exercised its jurisdiction. The reasons provided were deemed adequate, and it was held that there was no obligation for the specialist or the panel to explain differences from earlier assessments unless necessary to avoid misunderstanding. The court concluded that the decision was not so wrong as to be perverse, and therefore no error was shown. Consequently, the appeal was dismissed.

No specific orders were made beyond the dismissal of the appeal. The decision underscores the importance of understanding the jurisdictional scope of appeal panels in workers compensation cases and the adequacy of the reasons provided in such reviews.

Orders