Another Supreme Court Win!

Edwards Michael Powell Lawyers recently successfully defended proceedings brought in the Supreme Court seeking to challenge the Decision of a Medical Appeal Panel on administrative law grounds.

In Maricic v. Registrar, Workers Compensation Commission & Ors [2009] NSW SC 925 our Special Counsel, Tim Wardell, appeared for the employer to resist a claim that the worker was denied procedural fairness where a member of the Medical Appeal Panel had undertaken an examination and formed an adverse view of the worker’s consistency, including observations of movements outside the formal clinical examination.

It was argued on behalf of the worker that procedural fairness required her to be informed of findings which were adverse to her credit, to the extent that the MAP member formed the impression that she was exaggerating.

Associate Justice Harrison rejected this argument, relying on the established authorities of Estate of Heinrich Christian Joseph Brokmann v. Brokmann Metal Roofing Pty Limited & Ors [2006] NSW SC 235 and Skillen v. MKT Removals Pty Limited [2007] NSW SC 608 that it is not a breach of procedural fairness for a Medical Appeal Panel to proceed on the examination findings of one of its members without giving the worker an opportunity to be heard in relation to such findings.

Associate Justice Harrison emphasised the fact that an examination by a MAP member is sanctioned by the Workcover Guidelines and forms part of the decision-making process, meaning that the MAP member conducting the examination is not in the position of a witness but is in fact carrying out the function of a decision-maker.

Section 55 Reviews – Are Dispute Notices required?

There have been two important recent Presidential Decisions in relation to this issue, resulting in different considerations depending on whether the application for review is being made by the worker or by the employer.

If the application is being made by the worker, then the worker is required to submit a “claim” to have the Award reviewed, and so a Dispute Notice is required: Seddon v NSW Police Force [2009] NSW WCC PD 29.

However, if the employer is seeking review of an Award, then a Dispute Notice is not required, because there is no “claim” for compensation within the definition of Section 70 of the 1998 Act. In Pages Hire Centre Kogarah v Chapman [2009] NSW WCC PD 9 Deputy President Roche stated:

“An application seeking a ‘review’ is not ‘a claim’ for compensation, but is an application that any weekly payment of compensation be reviewed by the Commission at the request of the employer or the worker or the Authority’ (see Section 55(1)). On such a review ‘the weekly payment may be ended, reduced or increased’ (Section 55(2)(a)).

It follows that neither Section 74 nor Section 289A apply to an application for a ‘review’ under Section 55. The Commission’s jurisdiction to hear a Section 55 application for review is found in Section 105 of the 1998 Act, which provides that ‘the commission has exclusive jurisdiction to examine, hear and determine all matters arising under’ the 1998 Act and the 1987 Act. Therefore, it is clear that the Commission does have jurisdiction to hear and determine a Section 55 application for review without the need for a Section 74 Notice to be served…”

Notwithstanding the finding that a Dispute Notice is not required for employer applications for review of Awards, Deputy President Roche considered that it was incumbent on employers to clearly state the section or sections of the legislation upon which the application is based and clearly particularise the grounds on which relief is sought.

WCC Video Evidence

What is the legal position regarding admissibility of video evidence in the Workers Compensation Commission?

Is it sufficient for surveillance reports only to be served, or is the electronic recording itself also required?

These questions are often asked by both claims officers and practitioners.

The issue was considered by Acting Deputy President Snell in Toll Pty Limited v. Morrissey (No.3) [2009] NSW WCC PD 85.

In that case, the surveillance report had been served but the DVD itself had not. The Arbitrator declined to permit use of the DVD on the basis that as it had not been served and as no reasonable excuse had been provided to explain the failure to serve the DVD, the principles of procedural fairness required that the evidence be rejected.

The Acting Deputy President noted that the DVD was deemed by the Rules to be a document and that whilst the Rules provide that all documents must be served with a Reply, there is a discretionary power to admit evidence not so provided “in the interests of justice”.

Notwithstanding the absence of a satisfactory explanation for failure to serve the DVD prior to the Arbitration, the Acting Deputy President was persuaded by the fact that the DVD post-dated the Reply and so could not be attached to it; by the fact that there could be no prejudice to the worker because the substance of the DVD was fully detailed in the surveillance report which had been served; and by the fact that the Respondent would have been substantially prejudiced if it was not permitted to rely on the DVD, which was found to be material and probative evidence.

This decision also illustrates the importance of attaching electronic recordings to Applications or Replies filed in the Commission, serving reports and electronic evidence at the earliest possible opportunity after they become available, and adducing evidence to explain any delay in filing and service of such evidence.

The situation regarding provision of DVD’s and other electronic recordings with Dispute Notices is somewhat different. Unless “reports” identified in Regulation 37 of the Workers Compensation Regulation 2003 are attached to a Dispute Notice, then they are effectively inadmissible (see Section 73(3)(b) and Section 119(6)(b) of the 1998 Act). However, Regulation 37(1)(d) refers only to “investigators’ reports” and so it is arguable that the electronic recording is not required.

However, until this issue is settled by a Presidential Decision, insurers would be well advised to also attach the electronic recording to Dispute Notices.

Duelling Experts

Is it the case that evidence of the expert with the greater level of qualifications or expertise is to be preferred?

This question was answered in the negative by the Court of Appeal in Sydney South West Area Health Service v. Stamoulis [2009] NSW CA 153 (24 July 2009).

The Trial Judge rejected an argument by the Defendant that its liability expert ought be preferred on the basis of a greater level of expertise. The Defendant appealed on a number of grounds, including that the Trial Judge erred in this respect.

The Court of Appeal disagreed, stating:

“It was a matter for his Honour, as the trial judge, to determine the differences in opinion between the two experts. In carrying out this exercise, it was a matter for him to determine what weight should be attributed to their expertise, qualifications and experience – as it was in regard to the other relevant factors. His Honour made no error in principle in deciding that the issue could not be determined by weighing up the expertise of these two specialists who were both eminent in their field. Once the experts were properly qualified, it is perfectly understandable that his Honour would wish to determine the differences between them by reference to the logical force of their testimony, the evidence as a whole, and questions of demeanour”.

It is therefore the quality of the evidence as a whole that will be determinative, rather than a simplistic comparison of the relative qualifications of expert witnesses.

Life After Haroun

Tim Wardell comprehensively analyses the recent decisions which are presently causing substantial confusion in relation to jurisdiction between Arbitrators and Approved Medical Specialists, and the correct procedural approach where questions of “injury” are raised or where there are questions concerning whether there is a “medical dispute”, such as when an employer argues that the effects of injury have resolved. Tim concludes:

“in conclusion, it is recommended that insurers continue to carefully consider claims and issue s.74 Notices (thereby ensuring referral to an arbitrator) in circumstances where there is any debate as to the pathology (including secondary pathology) which results from an injury, whether the effects of any injury or aggravation have ceased, whether there has been any deterioration since a previous assessment or whether pathology results from an injury suffered subsequent to a work related injury”.

Click here to read this excellent Paper.

Recent Section 52A Developments

Maryan Lee considers recent Presidential decisions since De Brito. In a Paper recently delivered to the 2009 Personal Injury Law Conference, Maryan concludes that Section 52A remains a powerful tool for employers and that two recent decisions highlight the importance of workers complying with rehabilitation efforts. Click here to read Maryans 2009 Personal Injury Law Conference paper.

New Appointment

We are pleased to announce the appointment of Lisa Powell as a Partner of the firm on 21 September 2009.

Lisa is a highly experienced Accredited Specialist with an outstanding reputation and we are delighted to welcome her as a member of our Senior executive team.

Lisa’s e-mail is