11 November 2014
The NSW Supreme Court was asked by worker to consider whether a decision by the Workers’s Compensation Commission approved medical specialists appeal panel was afflicted by jurisdictional error. The decision regarded a worker’s degree of permanent impairment. The worker , Mr El Masri sought to quash their decision and remit that decision to the Registrar of the Worker’s Compensation Commission for a new decision to be made. He was unsuccessful and costs awarded against him.
Mr El Masri worked at Woolworths as a storeman and packer and was required to do repetitive lifting, bending and carrying of boxes and bags. In 2001, he developed groin pain and a further incident occurred in 2003. In 2006, Mr El Masri was made redundant from Woolworths and had been unable to find other suitable employment since then. He suffered from a pre-existing condition of ankylosing spondylitis or inflammation of the spine which affected his neck, mid-back and lower back.
Mr El Masri sought compensation from Woolworth’s for permanent impairment. To be entitled to work injury damages, the degree of permanent impairment must be 15% or more. There was a dispute over the degree of impairment. The Worker’s Compensation Act requires workers involved in such a dispute to be evaluated by ‘approved medical specialists’. Mr El Masri was assessed by the approved medical specialist as having 23% impairment but 80% of that was deducted due to the pre-existing condition. This resulted in Mr El Masri being assessed at having 5% impairment.
Mr El Masri disputed the deduction made for the proportion of impairment due to the pre-existing condition. The statutory presumption is that 10% should be deducted. Woolworths claimed that the whole of the impairment was due to the pre-existing condition.
Because Mr El Masri’s injury occurred prior to June 2012, the previous legislation regarding permanent impairment applied to him and at 5% permanent impairment he was entitled to some compensation, but not work injury damages. Under the new legislation, a worker is required to reach 10% permanent impairment to claim any compensation.
El Masri appealed this decision and the Registrar of the Worker’s Compensation Commission was satisfied that one of the grounds of his appeal was made out. A medial appeal panel appointed by the Commission reassessed the decision and made a decision on the papers. They agreed with the approved medical specialist and El Masri was unsuccessful in his appeal.
El Masri then applied to the NSW Supreme Court for judicial review of that decision on the grounds that there was a failure to take into account a relevant consideration being the medical evidence from his doctor on the relationship between the plaintiff’s work and the deterioration of his condition. In addition, Mr El Masri claimed an error of law and also that there had been a failure by the medical appeal panel to provide reasons.
In a decision dated 26 September 2014, the Court found no jurisdictional error and proceedings were dismissed with costs.
Link to decision – El Masri v Woolworths Ltd [2014] NSWSC 1344