Barnett v BTR Engineering [2002] NSWCC 45

Reported Decision : (2002) 23 NSWCCR 605

Compensation Court of New South Wales

CITATION : Barnett v BTR Engineering [2002] NSWCC 45 PARTIES : Robert Charles Barnett BTR Engineering MATTER NUMBER(S) : 11701 of 2002 JUDGMENT OF: Truss J at 1 CATCHWORDS: Miscellaneous Matters :- suspension of payments LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 CASES CITED: DATES OF HEARING: 11th June 2002 EX TEMPORE JUDGMENT DATE : 06/11/2002

FOR APPLICANT: Mr F Austin instructed by Taylor & Scott LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Robertson of McCulloch & Buggy

JUDGMENT: 1. The applicant in these proceedings claims lump sum compensation under s 66 and s 67 for permanent loss of the efficient use of the left arm as a consequence of an injury allegedly received on 4 August 2000. By notice of motion filed 22 May 2002 the respondent seeks an order pursuant to s 121(12) of the Workplace Injury Management and Workers Compensation Act 1998 that the prosecution of the applicant's claim for compensation be suspended. 2. On 24 January 2002 the respondent's insurer wrote to the applicant care of his solicitors advising him that a medical dispute existed as to the level of loss of use of his left arm and nominated three approved medical specialists. The letter sought the applicant's agreement to being assessed by an approved medical specialist to be bound by the findings and to choose one of the three specialists listed. Up to the present time the respondent has not received a formal response to this correspondence although there has been correspondence between the parties in relation to other matters including settlement. 3. S 121(12) provides: (12) If a worker refuses to submit himself or herself for examination by the approved medical specialist to whom the medical dispute has been referred if required to do so, or in any way obstructs the examination: (a) the worker's right to recover compensation under this Act with respect to the injury, (b) or the worker's right to weekly payments, is suspended until the examination has taken place. 4. It is not suggested on behalf of the respondent that the worker has refused to submit himself to an examination. Essentially the respondent's argument is that the applicant's silence constitutes obstruction of the examination. 5. It appears to me from a reading of the section that in order for it to operate it is necessary first for the medical dispute to have been referred to an approved medical specialist. This has not occurred for the simple reason that the applicant has not responded to the correspondence from the respondent's insurer. 6. S 121(2) as modified by reg 88 provides that a worker or employer can refer a medical dispute for assessment to an approved medical specialist agreed to by the worker and the employer (which is not the case here) or alternatively to an approved medical specialist nominated by the Registrar of the Workers Compensation Commission if the worker and employer unable to agree on the matter. In my view, as there has been no agreement between the parties because of the worker's silence, I consider that the appropriate course would have been for the employer to make an application to the Registrar of the Workers Compensation Commission to nominate an approved medical specialist. 7. I dismiss the respondent's motion on the grounds that s 121(12) does not apply because the medical dispute has not to date been referred to an approved medical specialist. I order the respondent to pay the applicant's costs and certify that this as an appropriate matter for counsel. Mr F Austin instructed by Taylor & Scott appeared for the applicant Mr Robertson of McCulloch & Buggy appeared for the respondent