Smith v Norton Pty Ltd (No. 2) [1996] NSWCC 9; (1996) 15 NSWCCR 37 (26 April 1996)

[1996] NSWCC 9; (1996) 15 NSWCCR 37

SMITH v. NORTON PTY LTD (No. 2)

Compensation Court of New South Wales: Neilson J

26 April 1996

Proceedings to obtain compensation - Determination of claims - Medical provisions - Application for medical panel - Condition precedent - Medical dispute - Service of medical report by party making application - Workers Compensation Act 1987, section 131

M.J. Claridge, for the applicant

P.C. Sweeney, for the respondent

Ex tempore

NEILSON J: This is an application for review of the decision made by Commissioner Grayson on 13 February 1996.

The Commissioner set aside a decision of the medical panel on 2 June 1994 because he held it was "tainted by procedural irregularity". The procedural irregularity identified by the Commissioner was that the employer had failed to furnish to the worker a report of Dr Carroll's examination of the worker on 22 November 1993. Accordingly the Commissioner believed that the failure to serve that report contravened the provisions of section 131(2) of the Workers Compensation Act 1987 (the Act).

The following facts are agreed or can be gleaned from the medical panel file which has been placed before me.

The applicant last worked on 14 February 1990. He made a claim for boilermaker's deafness on 5 October 1993. Prior to that on 11 September 1993 he had been examined by Dr Stylis on his own behalf and Dr Stylis had certified a binaural hearing loss of 23.6 per cent.

Dr Stylis' report was served upon the respondent via its insurer on 5 October 1993, the same day as the claim for boilermaker's deafness was made by the worker. On 22 November 1993 the employer had caused the applicant to be examined by Dr Raymond Carroll, also an ear, nose and throat surgeon. On 3 December 1993 a clerk of the insurer for the respondent with obvious authority telephoned the worker's solicitor advising that Dr Carroll had certified a 4.28 per cent binaural hearing loss. The parties agree that as a result of that telephone conversation, a medical dispute within the meaning of section 131(1) had arisen.

By letter dated 18 January 1994 received by the Court on 20 January 1994, the worker's solicitors lodged an application for a medical panel requiring it to certify inter alia whether the applicant had total or partial loss of hearing in either ear due to boilermaker's deafness or any deafness of the like origin and as to the quantum of any such hearing loss. Enclosed with the application to the medical panel was a copy of Dr Stylis' report.

A copy of Dr Carroll's report was forwarded under cover of letter of 2 March 1994 to the medical panel and was received by the medical panel on 7 March 1994. It is agreed that Dr Carroll's report was never served upon the worker although it is clear that work had been appraised in a telephone conversation of 3 December 1993 as to the quantum of Dr Carroll's certification.

On 2 June 1994 a medical panel certified that the worker had substantial diminution of hearing in each ear, but that was due to otosclerosis and that there was no hearing loss due to boilermaker's deafness or deafness of the like origin. It is clear that the members of the medical panel accepted neither the opinions of Dr Stylis or of Dr Carroll, and that is commonly enough seen.

The question as I have indicated is whether the failure by the employer to serve upon the worker's solicitors a copy of Dr Carroll's report vitiates this, the finding of the medical panel, for "procedural irregularity".

The relevant provisions of section 131 in force at the time of the events I have recited, are set out by me in my judgment in Illawarra Paving Pty Ltd v. Simone [1995] NSWCC 17; (1995) 11 NSWCCR 529. In this matter there appears to have been compliance with subsection (2), as both the worker had submitted himself for examination by his employer pursuant to section 129 and had been examined by a medical practitioner on his own behalf. There also appears to have been compliance with subsection (b) as the worker had furnished to the employer a copy of the worker's medical report.

The registrar in those circumstances is entitled, on the application of either the worker or the employer, to refer the medical dispute to which the application relates to a medical referee or medical panel.

It appears to me that looking at the terms of section 131(2) that the scheme is that a worker or employer can arrange a medical examination, serve the medical report and then apply for a medical panel. In this case, the worker submitted himself to examination at his own request, served the medical report and then applied to the panel, and only applied for the panel after a medical dispute came into existence.

The argument advanced by Mr Claridge for the worker is that the section requires that if each party has had an examination of the worker, each party is required to serve his, her or its medical report before a medical panel can be applied for.

I cannot interpret subsection (2) in that fashion. Such an interpretation would require subsection (b) to read:

"The employer or the worker or where each has had the applicant examined (as the case may be) has or have furnished the other with a copy of the medical practitioner's or medical practitioners' reports of the examination ..."

Clearly the section does not say that and in my view it does not mean it either.

The mechanism appears clearly to be and has always been accepted as such from my experience over the years, both in practice before the Court and on the Bench, that the party applying for the medical panel must serve his medical report so that the other party, be it the worker or the employer, can ascertain whether the worker's claim or the employer's claim is disputed. If it is disputed then the person who served the medical report can ask for a medical panel.

The Commissioner referred to two decisions, Boggian v. James Hardie & Co Pty Ltd [1983] 57 WCR (NSW) 51 and Taylor v. Board of Fire Commissioners (NSW), Matter No. 14083/83, Manser J, 12 May 1986, unreported. However, as I understand those authorities, and as I have been advised by counsel, they are not germane to the current discussion at all. They clearly require that there be formal compliance with the provisions of section 131 or its legislative predecessor and that the question for my determination is whether there has been procedural compliance. In my view there has been.

Accordingly I discharge the order made by Commissioner Grayson on 13 February 1996.

From the ruling I had made, it appears to me prima facie that an award ought be entered for the respondent. However, Mr Claridge wishes to address me and refer to authorities on the question as to whether the medical panel is binding, not only as to quantum but also as to aetiology, on which question there are a number of conflicting decisions in the Court.+

I order the applicant to file and serve written submissions within 21 days as to whether court is bound by certificate of panel as to causation, that is by 17 May 1996.

Respondent to file and serve written submissions by 31 May 1996. Applicant in reply by 7 June 1996.

Commissioner's order discharged

Solicitors for the applicant: Baron & Associates

Solicitors for the respondent: Curwood & Partners