Alm v Nimue Skin Pty Ltd - [2024] NSWPIC 568

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Alm v Nimue Skin Pty Ltd [2024] NSWPIC 568
APPLICANT:	Karen Alm
RESPONDENT:	Nimue Skin Pty Limited
MEMBER:	Mitchell Strachan
DATE OF DECISION:	15 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for lump sum compensation; prior Medical Assessment Certificate (MAC); section 322A; application for reconsideration of MAC; status of prior Certificate of Determination not responding to claim made; Pollard v Toll Helicopters NSW; Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley; DJL v Central Authority; Fairfield City Council v McCall (No 2); Samuel v Sebel Furniture Limited; Sleiman v Gadalla Pty Ltd; Held – Certificate of Determination a nullity; reconsideration application declined; appeal under section 327 preferable to exercise of discretion for reconsideration.
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination (COD) issued by the prior Workers Compensation Commission (WCC) dated 29 September 2020 is a nullity and as such the further COD issued by the WCC dated 20 October 2020 is otiose. 2. The applicant’s request to reconsider the Medical Assessment Certificate dated 24 August 2020 made pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 is declined. 3. The current proceedings for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 are dismissed. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained injury in the course of her employment with the respondent on
13 November 2013. Liability for injury to the left knee was initially accepted by the respondent’s insurer.
The applicant commenced proceedings in the Workers Compensation Commission (WCC) in 2018. In a Certificate of Determination (COD) and Statement of Reasons dated
31 August 2018 Arbitrator Moore found the applicant had sustained injuries to her left knee and both hips on 13 November 2013 and a consequential condition to the right knee resulting from the injuries sustained on 13 November 2013.
On 19 May 2020, the applicant, through her solicitor, commenced further proceedings in the WCC (matter 2745/20) by filing a “Form 7 – Application for Assessment by an Approved Medical Specialist”. This application sought assessment as to whether the applicant’s degree of permanent impairment was more than 20% (for the purpose of s 32A of the Workers Compensation Act 1987 (the 1987 Act) and in the alternative more than 10% (for the purpose of s 59A of the 1987 Act).
As a result, the applicant was assessed by Approved Medical Specialist Greggory Burrow and the WCC issued a Medical Assessment Certificate (MAC) dated 24 August 2020 in which the applicant was assessed with 17% whole person impairment.
Due to what appears to have been a registry error, on 29 September 2020 the WCC issued a COD making an award in favour of the applicant for permanent impairment compensation pursuant to s 66 of the…

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 568
Decision Date: 15 October 2024

CaseChat Overview and Summary

Alm brought a claim for a lump sum compensation under the Workers Compensation Act 1987 (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). Nimue Skin Pty Ltd opposed the claim and applied for a Medical Assessment Certificate (MAC) to assess the claim. A prior MAC had been issued in relation to Alm’s claim, but it did not respond to the claim as made. The court had to determine whether the prior MAC was a nullity and, if so, whether a reconsideration of the MAC was appropriate.

The legal issues included whether the prior MAC was a nullity because it did not respond to the claim as made and whether an application for reconsideration of the MAC was appropriate. The court referred to previous cases including Pollard v Toll Helicopters NSW, Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley, DJL v Central Authority, Fairfield City Council v McCall (No 2), Samuel v Sebel Furniture Limited, and Sleiman v Gadalla Pty Ltd. The court held that the prior MAC was a nullity as it did not respond to the claim as made and that a reconsideration application was not appropriate in this case. Instead, the court held that an appeal under section 327 was preferable to an exercise of the discretion for reconsideration.

The court declined the application for reconsideration of the MAC and held that the prior MAC was a nullity. The court held that an appeal under section 327 was preferable to an exercise of the discretion for reconsideration. The court made no orders in relation to the reconsideration application.

Orders