MARKOVIC v RYDGES HOTELS LIMITED and Anor [2009] NSWCA 181

MARKOVIC v RYDGES HOTELS LIMITED and Anor [2009] NSWCA 181

The Appeal Panel was entitled to correct the conceded error that the Approved Medical Specialist had wrongly combined impairments from two separate injuries, but it went further by reducing impairment assessments on issues not raised by the employer's appeal and without giving the worker an opportunity to be heard. That failure of procedural fairness meant the Panel misconceived its role, jurisdiction and duty, so its Medical Assessment Certificate had to be quashed and the medical appeal remitted to a fresh Appeal Panel.

Jurisdiction
Australia
Judgment Date
07 July 2009
Procedural Posture
Workers Compensation Judicial Review Appeal Concerning a Medical Assessment Certificate / Appeal by Leave to the New South Wales Court of Appeal From the Decision of Associate Justice Harrison in the Common Law Division
Outcome
Appeal allowed with costs; decision below set aside; Appeal Panel Medical Assessment Certificate quashed; employer's appeal from the Approved Medical Specialist's Medical Assessment Certificate remitted to a fresh Appeal Panel.
Legal Topics
['binding Medical Assessment' 'appeal to Appeal Panel' 'procedural Fairness' 'fresh or Additional Evidence' 'medical Assessment Certificate' 'whole Person Impairment']
["workers' Compensation" 'administrative Law'] ['binding Medical Assessment' 'appeal to Appeal Panel' 'procedural Fairness' 'fresh or Additional Evidence' 'medical Assessment Certificate' 'whole Person Impairment']

Case Brief

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Procedural Posture

Workers Compensation Judicial Review Appeal Concerning a Medical Assessment Certificate / Appeal by Leave to the New South Wales Court of Appeal From the Decision of Associate Justice Harrison in the Common Law Division

Legal Issues

  1. 1 ['Whether a respondent to an appeal from a Medical Assessment Certificate could adduce fresh or additional evidence when the appellant had not done so.' 'Whether the Appeal Panel was confined to the grounds of appeal referred by the Registrar.' 'Whether the Appeal Panel denied procedural fairness by reducing impairment assessments on new issues without giving the worker an opportunity to be heard.' "Whether the Appeal Panel failed to consider the worker's request for an assessment hearing after her consent to determination on the papers was withdrawn."]

Ratio Decidendi

The Appeal Panel was entitled to correct the conceded error that the Approved Medical Specialist had wrongly combined impairments from two separate injuries, but it went further by reducing impairment assessments on issues not raised by the employer's appeal and without giving the worker an opportunity to be heard. That failure of procedural fairness meant the Panel misconceived its role, jurisdiction and duty, so its Medical Assessment Certificate had to be quashed and the medical appeal remitted to a fresh Appeal Panel.

Court Disposition

Appeal allowed with costs; decision below set aside; Appeal Panel Medical Assessment Certificate quashed; employer's appeal from the Approved Medical Specialist's Medical Assessment Certificate remitted to a fresh Appeal Panel.

Orders

  • ['Appeal allowed with costs.' 'Set aside the decision of the Associate Justice Harrison of 6 March 2007.' 'In lieu thereof order that the Medical Assessment Certificate of the Appeal Panel dated 23 June 2006 be quashed.' 'Order that the appeal by the employer from the Medical Assessment Certificate of 29 August 2005...