BORG v THE REGISTRAR WORKERS COMPENSATION COMMISSION [2009] NSWSC 1389

New South Wales Supreme Court

CITATION : BORG v THE REGISTRAR WORKERS COMPENSATION COMMISSION [2009] NSWSC 1389

HEARING DATE(S) : 30 July 2009

JUDGMENT DATE : 16 December 2009

JUDGMENT OF : Hulme J at 1

1. Set aside the decision of Approved Medical Specialist, Dr Robert Breit ("the AMS") in WCC 1447/08 dated 8 July 2008. DECISION : 2. Set aside the Certificate of Determination of the Workers Compensation Commission in the matter of Christine Borg v Nutrimetrics Australia Pty Ltd, dated 18 July 2008. 3. Order that Dr Robert Breit, in the capacity of an Approved Medical Specialist, reconsider the assessment of the Plaintiff made by him on or about 7 May 2008 in accordance with law and with these reasons. 4. Order that the Defendant pay the Plaintiff's costs of these proceedings

Christine Borg Plaintiff PARTIES : The Registrar of the Workers Compensation Commission First Defendant Dr Robert Breit Second Defendant Nutrimetics Australia Third Defendant

FILE NUMBER(S) : SC 30124/08

COUNSEL : Ms BK Nolan Plaintiff Mr S Blount Defendants

NSW Compensation Lawyers Plaintiff SOLICITORS : IV Knight First and Second Defendants Spark Helmore Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No: 30124/2008 RS HULME J Wednesday 16 December 2009 CHRISTINE BORG v THE REGISTRAR OF THE WORKERS COMPENSATION COMMISSION AND ORS JUDGMENT 1 HIS HONOUR: On or about 28 February 2008, the Plaintiff in this Court applied to the Workers Compensation Commission to resolve a dispute as to the award of permanent impairment compensation pursuant to s65 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Act"). The dispute was referred to assessment by an approved medical specialist, Dr Breit, the Second Defendant. 2 The Medical Assessment Certificate ("MAC") that issued in consequence was dated 7 May 2008. It recorded a figure of zero for each of the matters recorded as in dispute, viz the Plaintiff's cervical spine and right upper extremity (right elbow and shoulder) and in consequence the Plaintiff's whole person impairment. Attached to or forming part of the Certificate were some 6 pages that referred to the documentary evidence referred by the Commission for the assessment, some details of the Plaintiff, a brief history of the incident in which injury was said to have occurred, symptoms and treatment, findings on physical examination of the Plaintiff, details of radiological examinations, an evaluation of permanent impairment and reasons for the assessment. 1 3 On 23 May 2008 Mr Petrovich, the Plaintiff's solicitor, wrote to the Registrar of the Commission, applying for Dr Breit to reconsider his assessment and either rescind, alter or amend the decision previously made by him. The letter contained a detailed criticism by Mr Petrovich of a number of aspects of Dr Breit's assessment. 4 On 8 July 2008, Dr Breit wrote to the Commission in the following terms.- "I am in receipt of a request for reconsideration of a MAC issued on 7 May 2008. I do not consider it appropriate to make any amendments." 5 Thereafter the Commission issued on 18 July 2008 a Certificate of Determination in the following terms:- "The Commission orders - 1 That the Applicant suffers 0% percent permanent impairment resulting from the injury on 3 April 2007 2 That there be no order as to costs. Brief statement of reasons 3 This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issues under part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 6 By Summons filed on 20 October 2008 the Plaintiff seeks:- 1. An order in the nature of certiorari setting aside the decision of Approved Medical Specialist, Dr Robert Breit ("the AMS") in WCC 1447/08 dated 8 July 2008 on the basis that the decision was vitiated by error and of no effect 2 An order in the nature of mandamus, or alternatively, an order pursuant to s65 of the Supreme Court Act 1970 (NSW) that the AMS exercise his power pursuant to s378 according to law 7 In the Summons the Plaintiff particularised her complaint supporting the first of the prayers as -