Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 Hearing dates: 21 October 2019 Date of orders: 17 June 2020 Decision date: 17 June 2020 Before: White JA at [1] Brereton JA at [12] Simpson AJA at [77] Decision: In proceedings 2019/153561 (Hochbaum v RSM Building Services): (a) the orders made by the President of the Workers Compensation Commission on 18 April 2019 be set aside, (b) in lieu thereof, the appeal from the decision of the Senior Arbitrator be dismissed and the Senior Arbitrator's Certificate of Determination dated 7 January 2019 be reinstated, and (c) by consent, there be no order as to costs, to the intent that each party bear its own costs.

In proceedings 2019/215243 (Whitton v Technical and Further Education Commission t/as TAFE NSW): (a) the orders made by the President of the Workers Compensation Commission on 17 June 2019 be set aside, (b) in lieu thereof, the appeal from the decision of the Senior Arbitrator be dismissed and the Senior Arbitrator's Certificate of Determination dated 7 January 2019 be reinstated, and (c) the respondent pay the appellant's costs. Catchwords: WORKERS' COMPENSATION – Assessment and amount of compensation – Discontinuation of payments – Construction of (NSW) Workers Compensation Act 1987, s 39 – Whether appellants were entitled to payments during the period between discontinuation and resumption of payments following assessment by an approved medical specialist Legislation Cited: (CTH) Social Security Act 1947, s 43(1) (NSW) Workers Compensation Act 1987, Pt 3, Div 2, Subdiv 3, ss 2A(2), 4, 9, 32A, 33, 36, 37, 38, 39, 43, 44B, 65, 66, 66A, 67, Sch 3, Sch 6, Pt 19H, Div 1, cll 1, 5, Pt 20, cll 1(5), 1(6) (NSW) Workers Compensation Legislation Amendment Act 2012 (NSW) Workers Compensation Legislation Amendment Act 2015 (NSW) Workers Compensation Regulation 2010, Sch 8, cl 4 (NSW) Workers Compensation Regulation 2016, Sch 8, cll 4, 28C (NSW) Workplace Injury Management and Workers Compensation Act 1998, Ch 7 Pt 7, ss 319, 320, 321, 321A, 322, 322A, 325, 326, 327, 329, 341, 352, 353 Cases Cited: Alcan (NT) Aluminium Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 AQO v Minister for Finance and Services [2016] NSWCA 248 Borovac v Corporate Ventures Pty Ltd t/as Bowsers Ashphalt (1995) 12 NSWCCR 84 Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 Dingjan, Re; ex parte Wagner (1995) 183 CLR 323; [1995] HCA 16 Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; [1988] FCA 294 Hee v State Transit Authority of New South Wales (2019) 287 IR 200; [2019] NSWCA 175 Hochbaum v RSM Building Services Pty Ltd [2019] NSWWCC 31 Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 Inghams Enterprises Pty Ltd v Belokoski [2017] NSWCA 313 Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647 Pacific National Pty Ltd v Baldacchino (2018) 98 NSWLR 483; [2018] NSWCA 281 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Justice [2015] NSWCA 386 RSM Building Services Pty Ltd v Hochbaum [2019] NSWWCCPD 15 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Stevens v The Railway Commissioners for NSW (1930) 31 SR (NSW) 138 Technical and Further Education Commission t/as TAFE NSW v Whitton [2019] NSWWCCPD 27 TNT Australia Pty Ltd v Horne (1995) 11 NSWCCR 497 Whitehaven Coal Mining Ltd v Pain [2018] NSWCA 229 Whitton v Technical and Further Education Commission t/as TAFE NSW [2019] NSWWCC 27 Texts Cited: State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 2016) Category: Principal judgment Parties: 2019/153561: Frank Hochbaum (appellant) RSM Building Services Pty Ltd (respondent) State Insurance Regulatory Authority (amicus curiae)