Welcome to the September 2016 edition of the Edwards Michael Powell eBulletin

Consent Findings in Weeklies Claim No Obstacle to Subsequent Claim for Permanent Impairment Compensation

In Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSW CA 213 the Court of Appeal considered whether consent findings that a worker had fully recovered from the effects of a psychological injury, for the purposes of a claim for weekly compensation and medical expenses, were sufficient to preclude a worker from subsequently claiming permanent impairment compensation.

The Court determined the matter in accordance with the principles in Jaffarie v Quality Castings Pty Limited [2014] NSW WCC PD 79 and Hassan v Spotless Property Cleaning Services Pty Limited [2015] NSW WCC PD 19, finding that once liability has been determined, any dispute concerning permanent impairment must be assessed by an Approved Medical Specialist in accordance with Part 7 of Chapter 7 of the 1998 Act “and decided by the Commission in accordance with that assessment notwithstanding any earlier and contrary findings of the Commission”.  

The Court decided that it was not possible for any estoppel created by the consent finding to override or defeat the direction to the Registrar in Section 293(2) of the 1998 Act, which requires a dispute concerning the degree of permanent impairment to be referred for assessment by an Approved Medical Specialist.  Meagher JA concluded:-

“The private law right constituted by the estoppel cannot prevent the operation of a statutory provision in such imperative terms”.  

The Court did not accept that the issue estoppel (consent finding) prevented a medical dispute from arising and, accordingly, held that assessment of that dispute was entirely a matter for an Approved Medical Specialist.

Workers’ Compensation Findings Do Not Prejudice Motor Accident Claim

In Spratt v Perilya Broken Hill Pty Limited [2016] NSW CA 192 the Court of Appeal considered an argument that Workers Compensation Commission findings in relation to causation were binding for the purposes of a claim for damages under the Motor Accidents Compensation Act 1999 (NSW).

Mr Spratt had been injured during the course of his employment as the result of the negligent driving of a motor vehicle by a fellow employee.  He was successful in his claim for permanent impairment compensation under the Workers Compensation Act, with the Arbitrator finding injury to the cervical spine in the nature of aggravation of a pre-existing condition of cervical spondylosis.

Mr Spratt then sought damages under the Motor Accidents Compensation Act, however a Medical Assessor appointed under that Act determined that there was no likelihood of cervical spine injury in the motor accident.

The proceedings eventually found their way to the Court of Appeal, which held that there was no estoppel because the parties in the Workers Compensation Commission proceedings and the motor accident proceedings were different.  Leeming JA stated:-

“Although Perilya (the employer) is a party to both the proceeding in the Workers Compensation Commission and the action in the District Court, its liability in the District Court depends upon Mr Rowe (the driver) being found to have breached a duty of care which was causative of loss to Mr Spratt.  It cannot be that Perilya is vicariously bound to pay some heads of damages for which Mr Rowe is not, or may not, be liable to pay…the preferred view is that if the employer is vicariously liable by reason of Mr Rowe’s liability, then it is plain that the issue estoppel asserted by Mr Spratt cannot apply”.

The Court also decided, similar to the reasoning in Hine (supra), that the scheme of the motor accidents legislation was such that the question of degree of permanent impairment and causation in respect of that impairment was entirely a matter for a Medical Assessor appointed under the legislation.  Leeming J stated:-

“It necessarily follows that the legislation abrogates common law issue estoppel to the extent that it would otherwise preclude a medical assessor from performing the tasks imposed on him or her by the Motor Accidents Compensation Act”.  

It was therefore decided that the findings of the Workers Compensation Commission did not have any influence or bearing on the question of the degree of permanent impairment for the purposes of the motor accidents claim.

No Breach Of Duty for Labour Hire Employer

In Jurox Pty Limited v Fullick [2016] NSW CA 180 the Court of Appeal considered an argument by a host employer that a District Court Judge incorrectly found that a labour hire employer was not a joint tortfeasor and that a Plaintiff’s damages should therefore not be reduced to account for the degree of employer-liability.

The Plaintiff was successful against the host employer on the basis that she and other employees were not complying with a system of work which was safe and which would have prevented the injury.  Leeming JA found:-

“I am satisfied that even a modicum of supervision would have exposed the incorrect method that the Respondent was using.  It would have been a short step from exposure to correction, and the avoidance of injury”.

It was accepted that the labour hire employer had undertaken an audit of the work environment, however it was not accepted that an audit would have revealed inadequacy of the host employer’s supervision.  Accordingly, the Court did not accept that the District Court Judge was in error:-

“The primary judge held that Integrated (the labour hire employer) was not a joint tortfeasor.  That was, as expressed by the primary judge, because Integrated had not been shown to be in breach of its undoubted duty of care.  Analysis of his reasons suggests also that a claim against Integrated would have failed on causation grounds; that is the input of the finding that any audit undertaken by Integrated would have revealed a safe system of work, but not the failure of Jurox’s (the host employer’s) supervision”.

For the purposes of Section 5B of the Civil Liability Act, Leeming J found that a reasonable person in the position of the labour hire employer would not have taken the precaution of ensuring that the host employer supervised its own system of work.

Accordingly, the Court of Appeal held that the District Court Judge was correct to find that the labour hire employer was not a joint tortfeasor and that there was no basis for a reduction in the Plaintiff’s damages.

Principal Not Liable for Subcontractor’s Negligence

In Lee v Wickham Freight Lines Pty Limited the Court of Appeal rejected an argument that that a principal was liable for damages to the employee of a subcontractor who suffered injuries whilst unloading goods.

It was accepted that a case against the employer may have been successful:-

“That the system of work which required the appellant to undertake the restacking by himself carried with it a foreseeable risk of injury was not in dispute.  One course would have been to make a second worker available to assist with the manual handling of the dislodged boxes…”.

However, the employer was not implicated in the proceedings and the question for determination was whether the principal was directly liable to the worker.  Basten JA endorsed the proposition that

“where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:

  1. The degree of control or direction exercised or which the third party is entitled to exercise over the worker;
  2. The condition of plant or premises under the control of the third party, or
  3. The activities of others on the site, generally for the purposes of the third party’s undertaking or business”.

It was ultimately found that none of these relevant factors were present.  The principal was not responsible for the system of work and therefore owed no duty of care.

Medical Appeal for Threshold Dispute despite Previous Certificate of Determination under 15% for Permanent Impairment Claim

On 10 August 2016 a Medical Appeal Panel issued a Decision in Michelle Lizdenis v Centrel Pty Limited [2016] NSW WCC MA 120.  

The worker had previously been assessed at 14% Whole Person Impairment on the basis of a Medical Assessment Certificate dated 26 November 2013 and, after an unsuccessful Appeal to a Medical Appeal Panel, a Certificate of Determination was issued on 30 May 2014 in respect of 14% Whole Person Impairment resulting from injury on 11 March 2010.

The worker complained that her condition had subsequently deteriorated and she therefore submitted an application for reconsideration which was determined in her favour by Arbitrator Harris on 28 January 2016.  Whilst Arbitrator Harris accepted that the worker would be precluded by Section 66(1A) from claiming further permanent impairment compensation, he decided that Section 66(1A) was limited to claims for permanent impairment compensation, and that a threshold dispute for the purposes of a claim for Work Injury Damages was not a claim for permanent impairment compensation and therefore did not prevent a Medical Appeal.  The Arbitrator also observed that, in any event, the Threshold dispute had not been the subject of a determination by the Commission.

The worker then filed an Application to Appeal against the Medical Assessment pursuant to Section 327(3)(a) deterioration and (b) availability of additional relevant information.

The Registrar’s Delegate decided that a ground of Appeal had been “made out” (Section 327(4)) and the matter was therefore referred to another Medical Appeal Panel.

The Medical Appeal Panel adopted the assessment of one of its members, Dr J Stephenson, and issued a certificate that the worker had 17% Whole Person Impairment.

The Panel noted the employer’s submission that Section 327(7) represents a complete bar to the Appeal.  That section provides that there is to be no Appeal against a Medical Assessment Certificate once ‘the dispute concerned” has been the subject of determination by a Court or the Commission or agreement registered under Section 66A of the 1987 Act.  In response to this submission, the Medical Appeal Panel stated that its role was to decide whether there had been a deterioration in the Applicant’s condition and to make an assessment of permanent impairment, not to determine the operation of Section 327(7).  It was noted that this issue had already been determined by the Registrar’s Delegate.

Deceased Worker; No Maximum Medical Improvement

In Basin Sands Logistics Pty Limited v Sharon Joy Duskovic as Administrator of the Estate of the Late David John Duskovic [2016] NSW WCC MA 91, a Medical Appeal Panel considered an Appeal from the finding of an Approved Medical Specialist that a worker who survived approximately 3 minutes from injury until death could be assessed at 100% Whole Person Impairment.

The Medical Appeal Panel decided that in such circumstances the criteria for Maximum Medical Improvement could not be satisfied.

The Certificate was therefore revoked and replaced with a Certificate recording 0% Whole Person Impairment.