Al-Kanani v GMS Spares Pty Ltd
[2024] NSWPIC 702
•16 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Al-Kanani v GMS Spares Pty Ltd [2024] NSWPIC 702 |
| APPLICANT: | Najah Al-Kanani |
| RESPONDENT: | GM Spares Pty Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 16 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker suffered injury in 2017 and was assessed by Medical Assessor (MA) in 2020 for permanent impairment at 13%; appeal by applicant against Medical Assessment Certificate (MAC) unsuccessful; applicant filed further application in 2023 pursuant to section 329(1) of the 1998 Act alleging deterioration; contested application before Member in 2023 which allowed further assessment under s 329; further assessment by MA certified permanent impairment at 15%; respondent filed application to rescind previous Member’s decision to allow further assessment asserting it is wrong as this breached section 322A; respondent did not raise section 322A submission before original Member when this submission was clearly available; error in not raising argument fault by respondent’s solicitors; no error by Member in failing to address an argument not put; Bramble Industries Ltd v Bell applied; application for reconsideration otherwise inappropriate method of correcting alleged error which should be addressed by Presidential member; Held – claim for reconsideration of Member’s decision dismissed; further MAC confirmed. |
| DETERMINATIONS MADE: | The Commission determines: Order 1. The application to reconsider the decision in Al-Kanani v GMS Spares Pty Ltd [2023] NSWPIC 638 is dismissed. 2. The medical assessment certificate dated 14 November 2024 means that the applicant has been assessed by a Medical Assessor as having a 15% impairment resulting from injury on 30 March 2017. |
STATEMENT OF REASONS
BACKGROUND
Mr Al-Kanani (the applicant) was employed by GM Spares Pty Ltd (the respondent) and sustained injury on 30 March 2017.
The applicant brought proceedings seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The President remitted the medical dispute for determination to Medical Assessor Beer who issued a medical assessment certificate dated 20 March 2020 (MAC). Medical Assessor Beer assessed the applicant at 13% whole person impairment due to injuries to the left upper extremity, cervical spine and resultant scarring.
An appeal against the medical assessment was dismissed.[1] The Panel held that no error was established under either s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[1] Panel decision dated 16 June 2020.
A certificate of determination dated 21 July 2020 was issued in accordance with the medical assessment certificate (COD).
RECONSIDERATION APPLICATION
On 1 June 2023 the applicant filed an application to reconsider the COD pursuant to s 57 of the Personal Injury Commission Act 2020 (the 2020 Act) and sought a further assessment pursuant to s 329 of the 1998 Act.
The parties filed written submissions. For the purposes of this application, it is only necessary to refer to the respondent’s submissions.
The respondent filed written submissions dated 24 August 2023 noting that the application for reconsideration was based on deterioration and the availability of additional relevant information (s 327(3)(a) and (b) of the 1998 Act). These submissions did not raise s 322A of the 1998 Act and submitted that there had been no deterioration within the meaning of that provision discussed in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW.[2]
[2] [2007] NSWCA 14.
The respondent filed further submissions prepared by counsel and dated 19 October 2023. These submissions objected to the applicant relying on the report of Dr Habib and submitted that the admission of the report offended reg 44 of the Workers Compensation Regulation 2016. The respondent otherwise again submitted that there had been no relevant deterioration.
These submissions did not raise that the applicant had exercised his right of one medical assessment within the meaning of s 322A of the 1998 Act and that the procedure under s 329 was unavailable.
Member Benk issued reasons dated 29 November 2023[3] rescinding the COD and remitting the matter for further assessment. The Member applied the principles in Samuel v Sebel Furniture Limited[4] and found there was “an arguable case with regards to deterioration”. There was no discussion on whether the application for further assessment under s 329 breached the one assessment process under s 322A, presumably because this argument was not raised by the respondent.
[3] Al-Kanani v GMS Spares Pty Ltd [2023] NSWPIC 638 (Al-Kanani).
[4] [2006] NSWWCCPD 141 (Samuel).
FURTHER MEDICAL ASSESSMENT CERTIFICATE
Medical Assessor Burns issued a medical assessment certificate dated 4 March 2024. The Medical Assessor concluded that the applicant had not reached maximum medical improvement.
Medical Assessor McGroder provided a further medical assessment certificate dated
14 November 2024 (further MAC). The Medical Assessor assessed the applicant as having suffered 15% whole person impairment.
PRESENT APPLICATION
The respondent wrote to the Commission on 26 November 2024 in the following terms:
“We refer to the above matter and MAC of Dr McGroder dated 14 November 2024.
The Respondent requests the matter be referred to a Member of the Commission and listed for a teleconference before a COD is issued.
The Respondent submits the matter was before the WCC in which the MAC of Dr Beer was issued certifying the Applicant’s permanent impairment as 13% WPI resulting from the left upper extremity and cervical spine injury on 30 March 2017. The Applicant appealed the MAC, and the MAP confirmed the MAC of Dr Beer. A COD was issued on 21 July 2020 confirming the same. The Applicant then made an application for reconsideration of the MAC of Dr Beer. On 29 November 2023 the PIC determined that the COD dated 21 July 2020 be rescinded.
The Respondent submits the determination of the MAP confirming the MAC of Dr Beer prevails over any reconsidered MAC, and the rescinding of the COD is of no consequence to the MAP determination.
The jurisdiction of the PIC in relation to the issue of MAP determinations, and subsequent claims for re-assessment has been addressed in the following decisions of ADP Nomchong SC and Principal Member Harris;
Secretary, Department of Communities & Justice v Cannell [2024] NSWPICPD 32 (31 May 2024); Meyers v Andrew Miedecke Motors Pty Ltd [2024] NSWPIC 357 (4 July 2024). The Respondent relies on section 322A of the 1998 Act and submits that the Applicant had exhausted his one assessment due to the exercise of the appeal.
Further, the Respondent submits that given the matter having been decided by an Appeal Panel, the Applicant has no entitlement to use section 329 of the 1998 Act for the PIC reconsider the original medical assessment.
We await your response.”
The applicant replied in the following terms:
“This matter was decided by Member Benk in a decision dated 29 November 2023 after written submissions were provided by both parties.
In that determination Member Benk decided that the COD dated 21 July 2020 be rescinded and the worker be referred for further assessment of WPI by a medical assessor.
The worker was then examined by Dr Mark Burns who opined in MAC dated 4 March 2024 that the condition had not reached maximum medical improvement. Then in MAC dated 14 November 2024 Dr Gregory McGroder opined a 15% WPI.
Then in email of 27 November 2024, Ms Nguyen on behalf of the Respondent makes submissions which appear to assert that the worker has no entitlement to be further assessed by a Medical Assessor and requests a teleconference.
The conduct of Ms Nguyen is improper and the request of Ms Nguyen should not be accepted by the PIC. If the Respondent wanted to make any such submissions of the nature now set out by Ms Nguyen, then it should have done so before the issues were determined by Member Benk. The Respondent cannot make any further submissions and the request of Ms Nguyen is opposed by the worker.”
The matter was listed before me on 6 December 2024 when the parties made further submissions. Mr Matthews appeared for the applicant and Ms Nguyen appeared for the respondent.
The respondent then articulated that this was an application, pursuant to s 57 of the 2020 Act, to reconsider the decision of Member Benk in Al-Kanani.
The respondent submitted that the “MAP took precedence” over the further MAC. No authority was cited for this submission.
The respondent referred to the decisions of Meyers v Andrew Miedecke Motors Pty Ltd[5] and Secretary, Department of Communities & Justice v Cannell[6] in support of its submission that the applicant had exercised his one appeal right and had no entitlement to the further assessment under s 329. It was submitted that the Member was wrong in allowing a further assessment.
[5] [2024] NSWPIC 357.
[6] [2024] NSWPICPD 32.
The respondent initially asserted that this submission was made to the original Member, in the written submissions. Upon the flaw in that argument becoming apparent, the respondent’s solicitor then expressed the “belief” that this submission was made orally to the Member at a preliminary conference. No response was provided by the respondent’s solicitor to the question as to the basis for this belief.
The applicant submitted that the argument had never been raised by the respondent and there was no basis for finding that the Member was wrong. The respondent had a right of appeal which had not been exercised.
The applicant referred to principles of finality of litigation and that the application for reconsideration was inappropriate in these circumstances.
The applicant did not press for further s 66 compensation but requested a certificate of determination be issued confirming the further MAC.
REASONS
The respondent referred to the principles in Samuel which concerned the exercise of the discretion to reconsider orders of the Commission under s 350 of the 1998 Act (now s 57 of the 2020 Act). Samuel was applied in Martinovic v Workers Compensation Commission of New South Wales[7] which in turn was referenced by the Court of Appeal in Sleiman v Gadalla Pty Ltd when Leeming JA stated:[8]
“Decisions referring to the principles under which a reconsideration power is exercised are collected in Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532 at [91]- [101].”
[7] [2019] NSWSC 1532 (Martinovic).
[8] [2021] NSWCA 236 (Sleiman)at [77].
I will limit the discussion of the discretion to reconsider based on the matters raised by the parties rather than all factors discussed in Samuel.
I do not accept that the respondent’s legal practitioners have moved expeditiously. They made the present application some 12 months after the initial reasons were delivered and then only following an adverse finding from the further MAC.
A relevant factor in the exercise of the discretionary power is the finality of litigation.[9] The High Court in Burrell v The Queen[10] stated:
“It is that the principle of finality serves not only to protect parties to litigation from attempts to re‑agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time‑consuming, and it is almost always costly.”
[9] See Samuel [44]–[45] applying Hilliger v Hilliger (1952) 52 SR (NSW) 105 and Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244.
[10] [2008] HCA 34 at [16].
The comments of the High Court were made in the context of a superior court reopening proceedings and reconsidering the orders that had been made. However, I agree that the observations are otherwise consistent with the authorities that support the principles of the finality of justice in an application for reconsideration.
The finality of litigation is a compelling argument in the rejection of the reconsideration application particularly where the respondent, though its legal representation, failed to advance an argument before the original Member that should have been known to it.
The respondent alleged that the Member erred because the referral for further assessment was in breach of the one assessment under s 322A of the 1998 Act. The insurer referenced recent decisions, including my own, which supported that submission.
The respondent had a right to appeal the Member’s decision. An application for reconsideration is an inappropriate method of correcting alleged errors by a Member. In this matter I am being asked to make a finding that another Member has erred. There are obvious and self-evident reasons why that determination should be made by the Presidential unit. It is not the role of a Member to make a finding that the earlier reasons delivered in this matter are wrong, involve error and should be reconsidered. The appropriate course is that the respondent should exercise any right of appeal.
I am not satisfied that the respondent raised the issues it presently articulates before the original Member. It initially asserted that it relied upon s 322A as a defence to the claim for further assessment in its written submissions. When the error in this submission was brought to its attention, it then asserted that it held the “belief” it was raised at a preliminary conference. The respondent was questioned about the basis for that belief and did not answer the question.
I have considered the two sets of written submissions filed by the respondent and the Member’s reasons, none of which refer to an argument that the applicant’s then application was in breach of the one assessment under s 322A. Given the unexplained basis of the hearsay “belief” of the solicitor appearing for the insurer and the denial by Mr Matthews, I am not satisfied that this issue was raised before the original Member. Unfortunately, in these circumstances I conclude that this submission was misleading and made without any basis.
Based on this finding I do not accept that there was any error by the original Member in failing to address an argument not put.[11]
[11] Bramble Industries Ltd v Bell [2010] NSWCA 162 at [30].
The respondent’s suggestion that these are “new” arguments by reference to recent authority is simply wrong. In 2016 Roche AP in O’Callaghan v Energy World Corporation Ltd[12] doubted that “the reconsideration power in s 329 can work with s 322A”.[13]
[12] [2016] NSWWCCPD 1 (O’Callaghan).
[13] O’Callaghan at [87].
In 2018 Snell DP in Singh v B & E Poultry Holdings Pty Ltd[14] noted that the comments of s 329 in Milosavljevic v Medina Property Services Pty Ltd[15] (which expressly described the entitlement under s 329 right as a general unfettered discretion) were subject to the context of the legislation. The Deputy President observed in Singh that the exercise of the discretion in s 329 had to be considered in light of the one assessment in s 322A.
[14] [2018] NSWWCCPD 52.
[15] [2008] NSWWCCPD 56.
In 2021 the Court of Appeal in Sleiman held that there was only one entitlement to appeal from a medical assessment.
In Scone Race Club Ltd v Cottom[16] Basten JA described the decision of Sleiman in the following terms:[17]
“The third case to be addressed is Sleiman v Gadalla Pty Ltd. The reasoning in that case is only indirectly relevant to the present matter. Leeming JA (with the agreement of Gleeson and Payne JJA) concluded that the statute allowed only one appeal from a medical assessment. The commencing point for the reasons was s 322A, introduced into the Workplace Injury Act in 2012, which provides that there is to be ‘only one assessment… of the degree of permanent impairment of an injured worker’: s 322A(1). The section does not limit the right of appeal under s 327: s 322A(4).”
[16] [2024] NSWCA 34 (Cottom).
[17] Cottom at [34], Gleeson and Mitchelmore JJA agreeing.
These decisions[18] predated the submissions made to the original Member. The purported reliance on recent authorities, seemingly to explain the lack of articulation of the s 322A “defence” also undercuts its assertion that it initially made the submission.
[18] Save as to Cottom.
I am not satisfied that the respondent made the s 322A submission to the original Member. I am satisfied that the failure to raise this submission was due to error on the part of the respondent’s legal advisors.
Whilst it may be assumed that the authorities referenced by the respondent show that the concluded exercise of a right of appeal is contrary to a further application under s 329, the parties run and defend cases based on their submissions. It is an abuse of process as well as other principles such as Anshun[19] and principles of merger in judgment to revisit a decision some 12 months later and make further submissions under the scope of the reconsideration power.
[19] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45.
The issue of whether a further application under s 329 breaches s 322A is otherwise not straight forward.
I repeat what was stated in MeyersvAndrew Miedecke Motors Pty Ltd[20] on the issue of the continued application of s 329 when I stated:[21]
“First, I accept that any reconsideration application under s 329 of the 1998 Act may not necessarily be contrary to s 322A. A clear example is where a medical dispute has not been fully determined because a Medical Assessor has not decided the entirety of the medical dispute[22] such as failing to assess scarring. In those circumstances, the reconsideration application would be necessary to complete the original assessment, or, as an alternative to an appeal (s 329(1)(a) of the 1998 Act). This type of reconsideration would not be a breach of the one assessment under s322A as the assessment has not been completed or undertaken as an alternative to an appeal.”
[20] [2024] NSWPIC 357 (Meyers).
[21] Meyers at [35].
[22] See Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) at [46]-[48].
More recently the Court of Appeal in Wright v State of New South Wales[23] referred the matter back to an appeal panel or, in the alternative, for further assessment pursuant to s 329. That order recognised that s 329 had a continual role as an alternative to an appeal.
[23] [2024] NSWCA 77.
The respondent has articulated no compelling reason why the Member’s decision should be reconsidered by a Member. It has delayed making the application and purported to rely on “recent” decisions to justify a submission that there has been some change in the interpretation of the law. An examination of relevant authorities shows that the respondent’s failure to make the relevant submission before the original Member was solely the fault of its solicitors. Other matters such as the finality of litigation and delay show that this application has no substance.
In any event the further medical assessment has occurred pursuant to an order lawfully made by the previous Member. The further MAC cannot be undone, and it is certainly not void. The respondent has given no consideration how any subsequent order of the Commission would somehow overturn a medical assessment made pursuant to an order. These observations just raise further concerns with what action can now supposedly be taken by the Commission to overturn what has occurred.
ORDERS
The applicant advised that it did not seek further s 66 compensation and that it only sought an order confirming the further MAC.
The applicant obviously has in mind that the further MAC provides a basis for seeking damages as he has now been assessed as having met the 15% threshold under s 151H of the 1987 Act.
Given the way the respondent has contested this matter and its assertion that the further MAC has no effect based on the earlier Appeal Panel decision, I accept that there is a proper basis for making an order that the further MAC satisfied the requirements under s 151H. The further MAC is a revised and current assessment binding on the parties. I reject the respondent’s submission to the extent that it submitted otherwise.
The application to reconsider the Member’s decision is rejected. The orders are set out in the Certificate of Determination.
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