Thompson v Bernipave Pty Ltd [2020] NSWWCC 169 (21 May 2020)

Key Takeaways

In this matter, Arbitrator Bamber of the Workers Compensation Commission (WCC) determined the Whole Person Impairment (WPI) claim rather than sending it to an Approved Medical Specialist (AMS).

The decision was heavily influenced by the specific facts of the case, particularly, there only being one WPI assessment in evidence.

As some Arbitrators are willing to determine the WPI issue, respondents and their legal representatives must be ready to make submissions at a teleconference.

Brief Facts

It was not disputed that the worker suffered bilateral inguinal hernia at work in September 2018.

On 12 December 2019 the worker’s solicitor made a lump sum claim under s66 of the 1987 Act for 14%WPI. The lump sum claim was based on the report of AP Wong.

There was no response to the lump sum claim by the respondent. Therefore, on 13 February 2020 the worker’s solicitor filed an Application to Resolve a Dispute in the WCC.

The matter was referred to an AMS, however, due to the COVID-19 virus, the AMS appointment was cancelled and a teleconference before an Arbitrator was scheduled.

The teleconference took place on 5 May 2020 where the parties were required to make submissions as to whether the Arbitrator should determine the matter and submissions as to the merit of the WPI claim. The report of AP Wong was the only WPI assessment in evidence.

Judgment

Arbitrator Bamber found that this was an appropriate case to determine the matter rather than send it to an AMS for the following main reasons:-

• The WPI claim of the worker was based on AP Wong’s opinion. The Arbitrator found no error of reasoning, no misapplication of criteria to assess permanent impairment and considered that AP Wong had taken a detailed history and a thorough examination.
• The worker impressed Arbitrator Bamber as a witness of truth and he accepted the worker’s evidence.

Although they were not the main factors according to Arbitrator Bamber, the following factors were also taken into account when deciding to determine the matter:-

• Lack of response by the respondent
• There would be a waste of costs and undue delay if the matter was referred to an AMS.

Based on AP Wong’s opinion, the Arbitrator awarded compensation under s66 of the 1987 Act for 14%WPI.

Implications

In April this year, the WCC commenced appointing teleconferences rather than appointing AMS examinations in proceedings relating to WPI. This was in response to the restrictions on AMS appointments due to the COVID-19 pandemic.

Based on the legislation and the case law, particularly Etherton v ISS Property Services Pty Ltd (2019)NSWWCCPD (President Phillips), Arbitrators do have the power to determine WPI.

Our experience so far at TurksLegal is that most Arbitrators will refer the WPI question to an AMS pending list. However, as some Arbitrators are willing to determine the WPI issue, respondents and their legal representatives must be ready to make submissions at a teleconference. Submissions will most likely need to be made as to whether the Arbitrator should determine the matter and as to the merit of the WPI claim.