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Panel fails to reason 20 WCMS 1

Petrovic v BC Serv &c [2007] NSWSC 1156 Hoeben J. 

On a slipping cleaner's claim, an arbitrator in October 2006 referred to an AMS assessment of the right arm and leg, and thoracic and lumbar spines, but did not include the cervical spine in the referral.

The employer consented to application by representation to the Commission that the neck be included.

The referral was unamended but AMS Dr Beer assessed the neck, after late November examination. MAC issued 13% WPI.

The worker appealed, with statutory declarations by the worker and her daughter that there had not been proper examination by the AMS, and there had been errors by the interpreter.

The Commission Registrar determined under WIM s 327(3)(b) that the statutory declarations were "additional relevant information" not previously available, and sent the appeal to a medical appeal panel.

Citing Wikaira v Reg'r WCC & Anor [2005] NSWSC 954, the panel gave reasons, discounting the moment of the statutory declarations, and determining the terms of the referral were exclusively binding, therefore excluded the cervical spine, and on 23.04.07 reissued the MAC minus the neck finding.

The panel also referred to Campbelltown CC v Vegan (2005-6) 67 NSWLR 372 and Summerfield v Registrar WCC & Anor [2006] NSWSC 515.

Then on 04.05.07, the appeal panel issued another set of reasons, different from those previously, amending the cervical spine reference, and purporting to confirm the MAC of Dr Beer of 13% WPI.

The plaintiff sought declarations by summons on prerogative grounds of jurisdictional error, beyond power, and error on the face of the record.

Hoeben J detailed 1998 Act s 328 and Guideline cl 46.

His Honour said [31]: "In my opinion the words 'availability of additional relevant information' qualify the words in parentheses in s 327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS.

"That approach is supported by s 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s 326 as to which a MAC is conclusively taken to be correct.

"In other words, 'additional relevant information' for the purposes of s 327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS.

"It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b).

"It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not 'additional relevant information' for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.

"Otherwise any process could be challenged by such statutory declarations, rendering appeals automatic.

"Once enlivened however, the appeal panel's powers were extensive: Zuanic v Gypro-tech (Aust) PL (2005-6) 66 NSWLR 206; [2006] NSWSC 739Crean v Burrangong Pet Food PL [2007] NSWSC 389 at [27].

"In other words once a matter is properly before the MAP, it is not restricted in its considerations purely to those grounds of appeal which the Registrar considered had been 'made out' but is to carry out a review in accordance with s 328.

"That may include having regard to evidence of the kind contained in the statutory declarations.

"Accordingly, although the Registrar erred in allowing the appeal to go forward on the basis that the ground in sub s 327(3)(b) had been made out, it was open to MAP to have regard to this evidence once the matter was properly before it.

"Since no challenge has been made to the Registrar's decision, the matter was properly before the MAP in this case." [37]

His Honour held there was no jurisdictional error as the panel was entitled to proceed on papers without a hearing: Craig v South Australia(1995) 184 CLR 163 at 179. There were adequate reasons for rejecting the statutory declarations' proofs.

However Hoeben J agreed the MAP erred in failing to give reasons for confirming the AMS.

"Vegan made it clear that although there was no express requirement under the Act for the MAP to provide reasons for its decision, such a requirement arose by way of an implied statutory obligation.

"That obligation exists not only where a MAC was being set aside, but also where a MAC was being confirmed. [42] This is particularly so where, as here, submissions had been made by the plaintiff purporting to identify inconsistencies in the reasoning process and conclusions of the AMS."

Then [43]: "What seems to have occurred here is that the MAP was so focused on dealing with what it perceived to be the problems created by the statutory declarations, that it failed to provide any reasons, let alone adequate reasons, for why it decided to confirm the MAC issued by the AMS.

"The MAP was, at the very least, required to engage the submissions put forward by the plaintiff as to the purported inconsistencies in the assessment of the AMS. This did not occur and that failure constitutes an error of law.

"It is sufficient for the purposes of relief unders 69 of the Supreme Court Act that an error of law has been identified which appears on the face of the record. As a result the decision of the MAP should be set aside."

Panel certificate set aside, matter remitted to Registrar for referral to another panel, first defendant to pay 75% of plaintiff's costs.

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