Kitanoski v JB Metropolitan Distributors Pty Limited [2019] NSWSC 1802

Kitanoski v JB Metropolitan Distributors Pty Limited [2019] NSWSC 1802

The Panel did not commit legal error or deny procedural fairness. It was open to the Panel to refuse re-examination because the appeal was a limited review, the plaintiff had no entitlement to a fresh examination, the Panel had sufficient evidence, and the matters relied on were either documentary, within medical expertise, or adequately addressed by submissions. It was also open to refuse the additional reports because they were post-assessment commentary on the AMS findings and did not satisfy s 328(3). The failure to take calf measurements was not shown to breach the Guidelines absent a finding of radiculopathy, and no legal error was shown in assessing vestibular impairment by...

Jurisdiction
Australia
Judgment Date
16 December 2019
Procedural Posture
Administrative Law Proceedings for Relief Under S 69 of the Supreme Court Act 1970 (nsw) Challenging Decisions of the Registrar and Medical Appeal Panel of the Workers Compensation Commission / Summons in the Supreme Court of New South Wales; Decision Under Review Dated 24 May 2019
Outcome
Summons dismissed; plaintiff ordered to pay the first defendant's costs of the proceedings.
Legal Topics
['medical Assessment Certificate' 'whole Person Impairment' 'medical Appeal Panel Review' 'procedural Fairness' 'fresh or Additional Evidence' 'reasons for Decision' 'guidelines for Evaluation of Permanent Impairment']
['administrative Law' 'workers Compensation'] ['medical Assessment Certificate' 'whole Person Impairment' 'medical Appeal Panel Review' 'procedural Fairness' 'fresh or Additional Evidence' 'reasons for Decision' 'guidelines for Evaluation of Permanent Impairment']

Case Brief

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Procedural Posture

Administrative Law Proceedings for Relief Under S 69 of the Supreme Court Act 1970 (nsw) Challenging Decisions of the Registrar and Medical Appeal Panel of the Workers Compensation Commission / Summons in the Supreme Court of New South Wales; Decision Under Review Dated 24 May 2019

Legal Issues

  1. 1 ["Whether it was open to the Medical Appeal Panel to refuse to re-examine the plaintiff where the Approved Medical Assessor noted disparities in the plaintiff's history and effort on examination." 'Whether refusal to re-examine the plaintiff denied procedural fairness.' 'Whether the Medical Appeal Panel was obliged to receive additional medical reports served after the medical assessment certificate.' 'Whether refusal to consider the additional reports and statutory declaration denied procedural fairness.' 'Whether the Approved Medical Assessors or the Panel failed to comply with the Guidelines concerning calf measurement for lumbar spine impairment or the Hallpike test for vestibular impairment.']

Ratio Decidendi

The Panel did not commit legal error or deny procedural fairness. It was open to the Panel to refuse re-examination because the appeal was a limited review, the plaintiff had no entitlement to a fresh examination, the Panel had sufficient evidence, and the matters relied on were either documentary, within medical expertise, or adequately addressed by submissions. It was also open to refuse the additional reports because they were post-assessment commentary on the AMS findings and did not satisfy s 328(3). The failure to take calf measurements was not shown to breach the Guidelines absent a finding of radiculopathy, and no legal error was shown in assessing vestibular impairment by...

Court Disposition

Summons dismissed; plaintiff ordered to pay the first defendant's costs of the proceedings.

Orders

  • ['Summons dismissed.' "Order the plaintiff to pay the first defendant's costs of the proceedings."]