Consent Orders v Determination of the Commission

Xenikas v ARB Corporation Limited [2020] NSWWCC 414

The Applicant sustained an injury during the course of his employment with the Respondent on 15 June 2018.

On 9 June 2020, the Commission issued a Certificate of Determination – Consent Orders ordering the Respondent to pay $51,648.30 in lump sum compensation to the Applicant in respect of 20% whole person impairment to the left and right lower extremity, the left and right upper extremity and lumbar spine.

The Applicant filed an application for an assessment by an Approved Medical Specialist (AMS) to determine whether his degree of permanent impairment was more than 30% WPI and therefore classifying him as a “worker with the highest needs” pursuant to Section 32A of the Workers Compensation Act 1987.

The Applicant sought an assessment of permanent impairment for the cervical spine, lumbar spine, left and right upper extremity, and left and right lower extremity. The Respondent disputed liability for the cervical spine.

Arbitrator Edwards conducted a teleconference on 16 October 2020 and the cervical spine injury was conceded by the Applicant. The Respondent disputed the Commission had jurisdiction to refer the Applicant to an AMS for an assessment of permanent impairment due to the operation of Section 322A of the Workplace Injury Management and Workers Compensation Act 1998.

Relevant Legislation

Section 322A of the 1998 Act states the following:

(1)  Only one assessment may be made of the degree of permanent impairment of an injured worker.

(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.

(2)  The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned.

(3)  Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—

(a)  assessment and a medical assessment certificate under this Part, or

(b)  a determination by the Commission under Part 4.

Determination / Reasons

The Respondent submitted Section 322A of the 1998 Act prevented a referral to an AMS as the Applicant had already had his “one assessment” of degree of permanent impairment when the Commission issued consent orders in June 2020. The Applicant submitted Section 322A of the 1998 Act was directed to the assessment of the degree of permanent impairment, which was distinguishable from the determination of a dispute by the Commission. He submitted the Commission had not made an assessment of permanent impairment under Section 322A when issuing the consent orders and therefore had not made a determination.

Arbitrator Edwards adopted the submissions of the Applicant, determining that the consent orders previously issued by the Commission were not an assessment of permanent impairment, were not a medical certificate and not a determination because the liability issue did not require determination by the Commission upon the parties reaching agreement as reflected in the consent orders.

Arbitrator Edwards considered the provision of Section 322A(1A) could not be interpreted to preclude the Applicant from being assessed by an AMS as to whether the degree of permanent impairment was more than 30% to be classified as a “worker with highest needs” pursuant to Section 32A of the 1987 Act.

Arbitrator Edwards remitted the matter to the Registrar for referral to an AMS for an assessment of permanent impairment of the left and right lower extremity, left and right upper extremity and lumbar spine for the purpose of determining whether the Applicant’s degree of permanent impairment was more than 30%.

Implications

Pursuant to Section 322A of the 1998 Act, a worker is allowed only one assessment of permanent impairment when a medical assessment certificate is issued in respect of the injury. This case demonstrated the distinguishable differences between consent orders made by the Commission and a determination made by the Commission for the purpose of Section 322A of the 1998 Act.

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