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MAC bars fitness finding 24 WCMS 2

Basit v Haden FM PL t/as Resolve FM [Allianz] [2008] NSWWCCPD 24. Roche DP. 22.02.08.

This was the fourth presidential appeal in this matter, after three arbitrations, an AMS MAC and MAP. There was an open oral hearing.

The worker claimed on back injury lifting in early 2004. He was unrepresented occasionally. He attracted injury finding. and s66 referral. An AMS had found 8% without deduction. The appeal panel had made 10% s323 deduction, to 7.2%, then rounded that down to 7%. The latest arbitration denied weekly payments.

Deputy president Roche allowed the appeal with costs, remitting the weeklies question.

Roche DP said [41]: "A certification of a 7% whole person impairment in a MAC involves an acceptance by the AMS and, in this case, the Appeal Panel, that the effects of the injury have not ceased but are continuing.

"Once liability in respect of that 7% impairment is determined against the employer, as it has been in this matter, it is not open for a determination that the effect of the injury has ceased, as found by the arbitrator in his first decision, to stand because such a finding is fundamentally inconsistent with the award for permanent impairment compensation: see Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33."

Later [59], "The respondent employer also argues that the appeal panel's reduction of 10% under s 323 of the 1998 Act is not conclusively presumed to be correct under s326(1)(b) and does not prevent the arbitrator from looking at all the evidence and coming to a different conclusion.

"I agree that in determining the question of incapacity and the entitlement to weekly compensation an arbitrator must consider all of the evidence. That does not, however, entitle him to form an independent view as to the section 323 deduction.

"In Cole v Baytech Industrial Pty Ltd [2005] NSWWCCPD 70 it was noted that whilst s326(1)(b) does not specifically state that the AMS finding on the amount of the s323 deduction is binding, 'a reading of Part 7 Chapter 7 of the 1998 Act as a whole, leads inescapably to that conclusion' (at [39]). I am in general agreement with that statement, so far as it relates to claims for lump sum compensation."

A: McDonnell Schroder. R: Ellison Tillyard Callanan.

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