Presti v Kaffe [2001] NSWCC 181

Presti v Kaffe [2001] NSWCC 181

The respondent's application for a medical panel was governed by s 122 rather than s 120(1), but the respondent had not complied with s 122(2)(b) because it failed to serve Dr Smith's report on the applicant before applying for the panel. The referral was therefore not made according to law, the panel was not validly held, and its certificate was not conclusive. On an independent assessment of the medical evidence and the applicant's presentation, allowing for exaggeration, the applicant had 15 per cent permanent loss of use of the dominant right arm at or above the elbow and pain and suffering assessed at 20 per cent of a most extreme case.

Jurisdiction
Australia
Judgment Date
19 October 2001
Procedural Posture
Workers Compensation Claim for Lump Sum Compensation for Permanent Loss of Use of the Right Arm and Pain and Suffering / Determination of Whether a Medical Panel Certificate Was Binding and Assessment of Compensation, Medical Expenses, Interest and Costs
Outcome
The applicant recovered lump sum compensation under s 66 and s 67; the medical panel certificate was held not binding, but the Court independently adopted the same 15 per cent assessment of permanent loss of use.
Legal Topics
['medical Panel Conclusiveness' 'permanent Loss of Use' 'pain and Suffering Compensation' 'medical Expenses' 'costs']
['workers Compensation'] ['medical Panel Conclusiveness' 'permanent Loss of Use' 'pain and Suffering Compensation' 'medical Expenses' 'costs']

Case Brief

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Procedural Posture

Workers Compensation Claim for Lump Sum Compensation for Permanent Loss of Use of the Right Arm and Pain and Suffering / Determination of Whether a Medical Panel Certificate Was Binding and Assessment of Compensation, Medical Expenses, Interest and Costs

Legal Issues

  1. 1 ['Whether the medical panel was held under s 122 of the Workers Compensation and Workplace Injury Management Act 1998 or under s 120(1).' "Whether the respondent's failure to serve Dr Smith's report before applying for the medical panel meant the referral was not lawfully made and the panel certificate was not conclusive." "The extent of the applicant's permanent loss of use of the right arm at or above the elbow under s 66." 'The amount of compensation for pain and suffering under s 67.' 'Whether a continuing order should be made for s 60 expenses or interest.']

Ratio Decidendi

The respondent's application for a medical panel was governed by s 122 rather than s 120(1), but the respondent had not complied with s 122(2)(b) because it failed to serve Dr Smith's report on the applicant before applying for the panel. The referral was therefore not made according to law, the panel was not validly held, and its certificate was not conclusive. On an independent assessment of the medical evidence and the applicant's presentation, allowing for exaggeration, the applicant had 15 per cent permanent loss of use of the dominant right arm at or above the elbow and pain and suffering assessed at 20 per cent of a most extreme case.

Court Disposition

The applicant recovered lump sum compensation under s 66 and s 67; the medical panel certificate was held not binding, but the Court independently adopted the same 15 per cent assessment of permanent loss of use.

Orders

  • ['$12,000 under s 66 for 15 per cent permanent loss of use of dominant right arm at or above elbow.' '$10,000 under s 67 for pain and suffering.' 'Liberty to either party to apply on seven days notice as to s 60 expenses or interest.' "Respondent to pay applicant's costs. Recommend such costs include fees for...