Velickovich v Registrar of the Workers Compensation Commission & Anor [2007] NSWSC 1208

New South Wales Supreme Court

CITATION : Velickovich v Registrar of the Workers Compensation Commission & Anor [2007] NSWSC 1208

HEARING DATE(S) : 26/10/2007

JUDGMENT DATE : 1 November 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS : Judicial review - incorrect criteria - allegation of lack of reasons given by AMS - review sought in respect of decision by Delegate - no challenge available on merits - role of Registrar

LEGISLATION CITED : Supreme Court Act 1970 (NSW) Workplace Injury Management Act 1998 (NSW)

Milan Velickovich (Pl) PARTIES : Registrar of the Workers Compensation Commission (1st Def) Demolition Plus Pty Ltd (2nd Def)

FILE NUMBER(S) : SC 30046/07

COUNSEL : Mr R. Harrington (Pl) Ms M. Allars (2nd Def)

Petrovich Accident Lawyers (Pl) SOLICITORS : Crown Solicitor (1st Def) (Submitting appearance) Moray & Agnew (2nd Def)

LOWER COURT JURISDICTION : Workers Compensation Commission

LOWER COURT FILE NUMBER(S) : 16680-06

LOWER COURT JUDICIAL OFFICER : Ms Samira Kamandi (Delegate of the Registrar)

LOWER COURT DATE OF DECISION : 18/04/2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

1 November 2007

30046/07 Milan Velickovich v Registrar of the Workers Compensation Commission & Anor

JUDGMENT 1 HIS HONOUR: The plaintiff suffered a work injury on 7 September 2002. An application to resolve a dispute was filed with the Workers Compensation Commission (the Commission). The medical dispute between the parties was referred for assessment to an Approved Medical Specialist (the AMS). The AMS came to make his assessment of degree of permanent impairment and issued his certificate (the certificate). The certificate recorded an 11% whole person impairment "as a result of his back condition resulting in surgery". 2 The plaintiff then brought an appeal against the decision of the AMS. The application for appeal was made on the ground of incorrect criteria only. Unusually, the ground of demonstrable error was not also relied on. 3 Broadly speaking, the documentation raised a number of matters in support of the ground of incorrect criteria. There was an allegation of failure to conduct a proper physical examination and comply with paragraph 4.32 of the Workcover Guides to the Evaluation of Permanent Impairment (Workcover Guides). There was allegation of error in the making of a deduction of one-tenth based upon a pre-existing condition. There was an allegation that the AMS failed to make an allowance for the effects of surgery in accordance with paragraph 4.34 of the Workcover Guides. The defendant joined issue on these allegations. For completeness, I should record that there was no suggestion of failure to give adequate reasons. 4 On 18 April 2007, a Delegate of the Registrar made a decision on the application. The decision was to the effect that the Registrar was not satisfied that at least one of the grounds of appeal as specified in s327(3) of the Workplace Injury Management Act 1998 (NSW) (the Act) had been made out. Accordingly, the appeal did not proceed. 5 On 9 May 2007, the plaintiff filed a Summons in this Court. The Summons named the Registrar of Workers Compensation Commission as the first defendant. The second defendant was the employer. The AMS was not named as a defendant. The plaintiff now proceeds on an Amended Summons. Relief is sought pursuant to s69 of the Supreme Court Act 1970 (NSW) (by way of judicial review). 6 The relief sought in the Amended Summons is directed to the decision of the first defendant only. This decision was therein said to contain a jurisdictional error. 7 The hearing took place on 26 October 2007. The plaintiff and the second defendant were legally represented. Both Counsel made written submissions. There was also oral argument. 8 Before proceeding further, I should foreshadow the initial direction taken by the plaintiff's case during that hearing. Save as to one aspect, rather than attack the decision of the Delegate, the plaintiff's case was directed to contents of the certificate (by way of failure to give adequate reasons and alleged error). There were further changes in presentation as the hearing proceeded. I shall mention them later. 9 Before turning to the submissions, I should refer to certain of the contents of the certificate. 10 Paragraph 4 thereof deals with "History Relating To The Injury". It contains, inter alia, the following [at p3]:- "Some 15 years ago he was working in the demolition business in Adelaide and he developed back and neck pain as a result of the nature and conditions of his work. He said that there was no specific injury. Investigations at the time demonstrated old Scheuermanns Disease but it was not felt to be relevant in his back condition. He said it was attributed to muscle and nerve damage. He was off work for around 18 months to two years and then returned to work via a rehabilitation group. He eventually obtained a settlement. He was transferred back to Sydney and once again worked in the demolition industry. He said at the time of his fall he was not having any back pain." 11 Paragraph 5 of the certificate sets out the purported findings of the AMS on physical examination.