Al-Kanani v GMS Spares Pty Ltd - [2024] NSWPIC 702

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 702
Decision Date: 16 December 2024

CaseChat Overview and Summary

The case of Al-Kanani v GMS Spares Pty Ltd involved a dispute over workers compensation. The applicant, a worker who had sustained an injury in 2017, underwent a medical assessment in 2020, which assessed the applicant's permanent impairment at 13%. The applicant appealed the Medical Assessment Certificate, but the appeal was unsuccessful. The applicant subsequently filed another application in 2023, seeking a further assessment under section 329(1) of the Workplace Injury Management and Workers Compensation Act 1998. This application was contested by the respondent, GMS Spares Pty Ltd, which argued that the earlier decision to allow the further assessment was in error as it allegedly breached section 322A of the Act. The matter was heard before a Member who allowed the application for a further assessment, resulting in a certification of permanent impairment at 15%. The respondent then sought to rescind the decision of the Member, arguing that it was in error for not raising a submission concerning section 322A. The respondent's claim for reconsideration was dismissed by the court.

The primary legal issue before the court was whether the Member had erred in allowing the further assessment of permanent impairment under section 329(1) of the 1998 Act. The respondent argued that the Member's decision to allow the further assessment was in error, as it breached section 322A of the Act. The respondent claimed that the Member should have declined to allow the assessment due to this alleged breach. The court needed to determine whether the Member had erred in allowing the further assessment and whether the respondent's submission concerning section 322A was valid. The court also had to consider whether the application for reconsideration was an appropriate method to address the alleged error.

In considering the appeal, the court noted that the respondent had not raised the submission concerning section 322A before the original Member, despite it being clearly available at the time. The court held that the error in not raising the argument was the fault of the respondent's solicitors, and that there was no error on the part of the Member for failing to address an argument that had not been put. The court applied the principles from the case of Bramble Industries Ltd v Bell, which held that an application for reconsideration is not an appropriate method for correcting an alleged error that should be addressed by a Presidential member. The court found that the Member's decision to allow the further assessment was not in error and dismissed the claim for reconsideration. The further Medical Assessment Certificate was confirmed.

The court dismissed the claim for reconsideration of the Member’s decision and confirmed the further Medical Assessment Certificate, which certified the applicant’s permanent impairment at 15%. The court held that the respondent's failure to raise the submission concerning section 322A before the original Member was an error on the part of the respondent's solicitors, and that the Member did not err in failing to address an argument that had not been put. The court found that the application for reconsideration was an inappropriate method for correcting the alleged error, and that the error should have been addressed by a Presidential member.

Orders