Markovic v Rydges Hotels Limited & Anor  NSWCA 181
Allsop P, Handley AJA and Hoeben J
- The respondent to an appeal from a Medical Assessment Certificate cannot introduce additional evidence except in reply to additional evidence introduced by the appellant.
- It is open to an Appeal Panel (the Panel) to depart from the grounds of an appeal but only if it notifies the parties and gives them an opportunity to be heard.
The worker in these proceedings sustained injuries whilst working for the employer in two separate incidents. The worker lodged a claim for compensation which was subsequently referred to an Approved Medical Specialist (AMS). The AMS issued a Medical Assessment Certificate (MAC) in which he combined the permanent impairments from both incidents, contrary to sections 322(2) and (3) of the Workplace Injury Management Act 1998 (NSW) ("the Act"), to give a total whole person impairment of 17%.
The employer appealed the MAC, challenging the aggregation of the impairments from the separate incidents and the matter was referred to the Panel. In the course of the appeal, the worker sought leave to adduce fresh evidence in relation to an injury to her further medical examination by the Panel. In allowing the employer's appeal, the Panel refused the worker's request to adduce fresh evidence and failed to consider the worker's request for a medical examination. The Panel also said that their role was to "conduct a review of the merits of the ... assessment" and substituted a whole person impairment of 5% for the first injury and 9% for the second injury.
The worker sought an order from the Supreme Court to have the decision of the Appeal Panel set aside on the basis that the Panel's decision constituted an abuse of discretionary power, in that, it failed to take into account relevant considerations; it was unreasonable; it constituted an error of law on the fact of the record; and, that it constituted a denial of procedural fairness. The worker was unsuccessful at first instance and sought relief from the Court of Appeal.
The Relevant Legislation
The application before the Court of Appeal concerned Part 7 of the Act which outlines the procedure for medically assessing workers and for appealing against those assessments.
As to the worker's request to adduce fresh evidence, Handley AJA (Allsop P and Hoeben J agreeing) held that the worker's application was misconceived. His Honour referred to section 328(3) of the Act which relevantly provides that in an appeal against a MAC, new evidence cannot be adduced unless it was not available to the appellant before the medical assessment, or, it could not reasonably have been obtained by the appellant before that medical assessment. The Act makes no provision for a respondent to adduce fresh evidence in opposition to an appeal unless the appellant has done so in support of the appeal.
His Honour noted that the worker could have appealed or cross-appealed against the MAC herself, and that as the appellant, she could have adduced new evidence. In any event, His Honour considered that the new evidence sought to be adduced was irrelevant to the issue contested in the appeal and for that reason alone, it had to be rejected.
In relation to the worker's request for a further medical examination, His Honour found that the Panel had not considered the worker's request. His Honour opined that this error would entitle the worker to have the decision of the Panel quashed unless it was quite clear that a fresh panel would find that the appeal was capable of determination on the papers, but stated that it was not necessary for the Court to decide that question.
His Honour then considered the Panel's statement that it was "their role to conduct a review of the merits of the ... assessment" and referred to the decision of the Court in Siddik v WorkCover Authority of NSW  NSWCA 116 in which it was said that "... while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate ... it was open to the Appeal Panel to depart from the grounds of appeal [but] it could only do so if it notified the parties and gave them an opportunity to be heard. It did not do so and, therefore misconceived its role, the nature of its jurisdiction and its duty" (per McColl JA at 101 and 104).
His Honour held that the Panel did not give the worker an opportunity to be heard on the new issues which they themselves had raised in conducting the merits review, and having thus misconceived their role, the nature of their jurisdiction and their duty, the Panel's MAC must be quashed, and the appeal from the MAC of the AMS must be reheard by a fresh Panel.
This case confirms the rule that a respondent to an appeal from a MAC cannot introduce additional evidence except in reply to additional evidence introduced by the appellant. Correspondingly, the decision also highlights the need for a respondent to consider bringing a cross-appeal in order to adduce fresh evidence which it wishes to be considered by an Appeal Panel.
This case also confirms the duty of an Appeal Panel to notify both parties if it intends to depart from the grounds of appeal and to give both parties an opportunity to be heard in relation to the issues they intend to raise.
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