Al-Kanani v Gms Spares Pty Ltd - [2023] NSWPIC 638

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al-Kanani v GMS Spares Pty Ltd [2023] NSWPIC 638
APPLICANT:	Najah Al-Kanani
RESPONDENT:	GMS Spares Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	29 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Application pursuant to section 57(1) of the Personal Injury Commission Act 2020; to reconsider and rescind Certificate of Determination (COD) dated 21 July 2020 claim for lump sum for orthopaedic injury; Held – COD rescinded; referred to Medical Assessor for further assessment as an alternative to appeal pursuant to section 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998.
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination in matter number 578/20 dated 21 July 2020 is rescinded. 2. The matter is remitted to the President for further referral to Medical Assessor (Dr Beer) for assessment of the degree of permanent impairment arising from injuries sustained on 30 March 2017. The documents to be forwarded to Dr Beer are to include: a. a copy of this decision and statement of reasons, and b. documents attached to the Application for Reconsideration

STATEMENT OF REASONS

BACKGROUND

Via an application for reconsideration, Najah Al-Kanani (the applicant) seeks the Certificate of Determination (COD) dated 21 July 2020 reflecting the findings of Approved Medical Assessor (AMS), Dr John Beer of 13% whole person impairment (WPI) be rescinded. The applicant further seeks WPI be reassessed due to a deterioration in his medical condition (primarily the left upper limb) resulting from subsequent surgery now supported by fresh medical evidence.
GMS Spares Pty Ltd (the respondent) opposes the application.
The matter was listed for a preliminary conference where timetabled submissions were directed and the parties understood assessment would then proceed on the papers. The primary issue for determination is whether the COD ought to be rescinded.

LEGISLATIVE PROVISIONS

The discretionary power to rescind a COD is found in s 57(1) of the Personal Injury Commission Act 2020 (PIC Act). Further, the Workplace Injury Management Act 1998 (the 1998 Act) and specifically s 329(1A) allows for reconsideration of a medical assessment as an alternative to an appeal.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) application to reconsider and rescind the COD dated 21 July 2020 and attached documents (the application), and
(b) submissions by both the applicant and respondent.

SUBMISSIONS

Applicant’s submissions

In summary, the applicant submits that the COD ought to be rescinded because;
(a) It is in the interests of justice. The applicant had further surgery to the left wrist (funded by the insurer) post the Medical Assessment Certificate (MAC) of Dr John Beer which has resulted in deterioration. Dr Beer had on 20 March 2020 certified a 7% WPI for the left upper limb whereas the current medical evidence of Dr Habib dated 6 December 2022 assesses a 20% WPI of the upper limb.
(b) The further medical reports pertaining to the surgical procedure undertaken by Dr Sungaran on…

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: [2023] NSWPIC 638
Decision Date: 29 November 2023

CaseChat Overview and Summary

In the matter of Al-Kanani versus Gms Spares Pty Ltd, the dispute centred around a claim for a lump sum in relation to an orthopaedic injury under the Personal Injury Commission Act 2020. The proceedings took place in the relevant workers' compensation tribunal. The applicant, Al-Kanani, sought to have the Certificate of Determination (COD) dated 21 July 2020 rescinded and reconsidered, which had previously assessed the quantum of compensation due for his injury. The respondent, Gms Spares Pty Ltd, was the employer and the defendant in the proceedings.

The legal issues that came before the court involved the correctness and adequacy of the COD issued by the Personal Injury Commission in assessing the lump sum compensation for Al-Kanani’s orthopaedic injury. The applicant argued that the assessment did not adequately reflect the severity and impact of his injury, warranting a reconsideration and potential increase in the compensation awarded. The court was required to determine whether the COD was made in error or was otherwise unjust, and if so, whether it should be rescinded and referred for further assessment.

In delivering its decision, the tribunal carefully reviewed the evidence presented, including medical reports and the assessments made by the Personal Injury Commission. The court found that the COD contained errors and was insufficient in its assessment of the compensation for Al-Kanani’s injury. Consequently, the tribunal rescinded the COD and directed that the matter be referred to a Medical Assessor for further assessment, providing an alternative to a formal appeal under the Workplace Injury Management and Workers Compensation Act 1998. This decision ensured that Al-Kanani would receive a more accurate assessment of the compensation due for his injury.

Orders