ACQ v Koskela Pty Limited

[2021] NSWPIC 494

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ACQ v Koskela Pty Limited [2021] NSWPIC 494
APPLICANT:	ACQ
RESPONDENT:	Koskela Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	19 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Self-represented applicant seeking lump sum compensation when he had already been assessed for the same 2017 injury in 2020; applicant subsequently came to surgery; discussion as to applicant’s remaining options and need for legal advice; Held - matter misconceived and dismissed pursuant to section 54 of the Personal Injury Commission Act 2020.
DETERMINATIONS MADE:	1.    The matter is dismissed.

Short Reasons

A.In this matter the applicant was self-represented.  On 22 October 2021 he lodged a Form 7 Application for Assessment by a Medical Assessor.

B.The date of the injury was claimed as 21 July 2017, and the injury description was described as “lumber (sic) spine after disc fusion”.

C.ACQ had earlier brought an action in matter 5672/19 for the same injury, and on 15 June 2020 a Certificate of Determination was issued. It noted that the whole person impairment resulting from his injury of 21 July 2017 was assessed at 7%, and that therefore the applicant had no entitlement to lump sum compensation.

D.This Certificate of Determination followed a Medical Assessment Certificate issued on 25 February 2020 in which the AMS (as he then was) found that ACQ had a whole person impairment of 7% in relation to his lumbar spine and 0% in relation to the urinary and reproductive system (consequential condition).

E.ACQ appealed to a Medical Appeal Panel and on 11 May 2020 the Panel issued a Medical Appeal Panel Certificate confirming the opinion of the AMS.

F.Notwithstanding, it would appear that ACQ then made a claim for a further s 66 impairment on the basis of a threshold claim, a Reconsideration Application, an Appeal from the Previous Medical Appeal Panel Decision, and a Pre-Filing Statement.

G.Ms Alisha Nair from Messrs Carroll & O’Dea wrote to the respondent’s insurers on 19 August 2021 explaining that they were then instructed to withdraw any of those claims that had been made prior to their involvement by ACQ[1].

[1] Reply page 14.

H.It can be seen that the application now before the Commission nominated the same injury as was dealt with in the Certificate of Determination of 15 June 2020, that is to say the injury of 21 July 2017.

1. ACQ in this application though added the words “after disc fusion” to the injury to the lumbar spine.  This came about because on 9 November 2020 ACQ came to surgery for his lumbar spine.

J.The teleconference was recorded and the transcript will show that Mr John Turner from Messrs Hicksons Lawyers explained the difficulty with ACQ’s application, in that it offended the relevant provisions as to the number of claims an injured worker can make under the present legislation.

K.Also discussed with Mr Turner was the question of whether ACQ had any remaining options, and Mr Turner mentioned the question of a deterioration pursuant to s 327(3)(a) of the 1998 Act.

L.The transcript will also show that ACQ appeared to understand that because of the complexity of his case, he needed to seek legal advice to establish if there was in fact and law a pathway as discussed by Mr Turner.

M.The present application cannot succeed because on its face it seeks to ignore the provisions of s 66(1A) of the 1987 Act and s 322A of the 1998 Act.  It is misconceived.

N.Section 54 of the Personal Injury Commission Act provides relevantly:

“54   Dismissal of proceedings

The Commission may at any stage dismiss proceedings before it-

(a)  ……..

(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or

(c)  ...”

O.Accordingly, the application is dismissed.