Mr Cigobia sustained a back injury in the course of his employment with Greyhound Australia Pty Ltd.
- Liability for his claim was accepted.
- He obtained a whole person impairment assessment of 6%.
- Mr Cigobia applied for a reassessment of his whole person impairment.
- On reassessment, his whole person impairment was 0% which made him very unhappy.
- Mr Cigobia’s rights under the Return to Work Act were exhausted. He sought judicial review of the reassessment from the Supreme Court.
In Cigobia v NT Worksafe & Anor [2024] NTSC 70, delivered 27 August 2024:
Error
Justice Kelly said at paragraph 59 “It seems to me that the resolution of this case boils down to the simple question of ascertaining who is the statutory decision maker: is it three medical experts each of whom is to form his or her own individual assessment, as [NT Worksafe] contends, or is it a panel of three medical experts who are to make the decision as a panel?”
At paragraph 66 Her Honour says, “I am of the view that the statutory context of s 72 and the wording of s 72 (4) in particular, means that the plaintiff’s contention is correct: the decision maker entrusted by the legislature with the task of reassessing a complainant’s WPI is “a panel of three medical practitioners” and not three medical practitioners acting independently.”
Justice Kelly found that the reassessment was not one made by the panel for the reasons set out in paragraph 67 of her reasons.
Materiality
Having found error, it was incumbent on the court to consider if it was material enough to quash the reassessment.
At paragraph 68 Justice Kelly said “NT Worksafe argued that it was not as either way the worker would not obtain an entitlement to whole person impairment. She did not agree, however; at paragraph 77, saying “there must be a possibility that a different assessment could have resulted had the reassessment been made by the panel…it is not fanciful to suppose that there could have been an assessment of 5% or more which would have entitled the plaintiff to compensation for permanent impairment under RWA s71.”
The decision of the panel was quashed on the basis that it dd not comply with the requirements of section 72 of the Return to Work Act.
Learnings
NT Worksafe is on notice that the way in which reassessment panels are to do their job must change.
