Sleiman v Gadalla Pty Ltd (NSWSC 2021)

Key Takeaways

The NSWSC has ruled that the Medical Assessment Certificate (MAC) issued by a Medical Appeal Panel (MAP) cannot be appealed to another MAP.

Brief Facts

The worker sustained numerous physical injuries and some consequential conditions as a result of the ‘nature and conditions’ of employment. The deemed date of injury was 14 May 2014. In his MAC dated 19 January 2017, AMS Truskett assessed the worker with 2% WPI. The worker lodged an appeal against the MAC on 19 January 2017. In a decision dated 16 June 2017, the MAP revoked the MAC and replaced it with a new MAC assessing the worker with 14% WPI.

The worker then lodged an appeal against the MAP decision. The thrust of the appeal was that new medical evidence showed his condition had deteriorated and that the deterioration had resulted in a higher WPI (increasing from 14% to 21%).

In a decision dated 18 September 2019, the Registrar’s delegate/gatekeeper (Delegate) determined that the worker’s appeal could not proceed for jurisdictional reasons - specifically that the WCC had no jurisdiction to hear an appeal against the MAC of a MAP.

In late 2019, the worker lodged an appeal in the NSWSC against the Delegate’s decision. The basis of the worker’s appeal was that he should not have been refused the opportunity to appeal the MAP’s decision dated 16 June 2017. The worker further argued that the Delegate’s role was not to consider jurisdictional issues. Rather, it was the worker’s submission that the Delegate’s sole role was determine whether at least one of the grounds of appeal was made out.

Judgment

In the NSWSC’s decision (per Harrison AJ) dated 15 December 2021, the Court found that the worker’s application for judicial review failed.

Regarding the worker’s argument that the Delegate was not entitled to consider jurisdictional issues, Harrison AJ held that the statutory provisions do not preclude Delegates from considering jurisdictional issues. On the contrary, Harrison AJ held that the Delegate in this matter would have breached his jurisdictional powers if he had considered the merits of the appeal given the catastrophic jurisdictional issue.

As to whether an appeal lies from a MAC issued by a MAP to another MAP, Harrison AJ held that an AMS who is a member of a MAP is not the same as an AMS who conducts the original assessment of a medical dispute and therefore, the MAC issued by a MAP is not the same as the MAC issued by the ‘original’ AMS. Because the legislation only provides for an appeal against an ‘original MAC’, the worker was barred from pursuing an appeal against the MAC issued by a MAP. A contrary finding would enable unlimited appeals to be lodged against MAP decisions which is clearly not the intention of the statutory provisions.

Implications

The decision confirms that a MAC issued by a MAP cannot be appealed to another MAP.

Of particular interest was Harrison AJ’s acknowledgement that the original error by AMS effectively prevented the worker ‘from availing himself of the statutory appeals process’. In other words, had AMS assessed 14% in the first place (and not 2% WPI) the worker would still have had an appeal ‘up his sleeve’. Harrison AJ did however note that there were other mechanisms by which the worker could have challenged the MAP’s decision.