Baker v Southern Metropolitan Cemeteries Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Baker v Southern Metropolitan Cemeteries Trust [2023] NSWPIC 593
APPLICANT:	Wayne Baker
RESPONDENT:	Southern Metropolitan Cemeteries Trust
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	8 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act1998; the applicant suffered psychological injury in 2013; assessed by Medical Assessor in 2016 as having 9% permanent impairment; appeal to an Appeal Panel was dismissed; application to Appeal Panel to reconsider its decision pursuant to section 378; section 378 repealed on 1 March 2021; discussion of unexercised rights in schedule 1 clause 14D of the Personal Injury Commission Act 2020; Dimos v Gordian Runoff Pty Ltd discussed and applied; applicant’s evidence prior to the establishment day (1 March 2021) was a statement and did not include medical opinion establishing an increase in permanent impairment caused by the injury; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales applied; Held – applicant did not satisfy an unexercised right; no entitlement to restore matter to refer to an Appeal Panel.
DETERMINATIONS MADE:	The Commission finds and orders: Order 1. The application to relist the matter to enable the Appeal Panel to reconsider its determination is refused.

STATEMENT OF REASONS

BACKGROUND

These proceedings have a lengthy history which is briefly summarised below. In this application Mr Wayne Baker (the applicant) seeks leave to reconsider the Medical Appeal Panel decision dated 13 July 2016 (MAP).[1]
[1] Reply to reconsideration application, p 1.
At the hearing it was noted that the proceedings had “otherwise” been discontinued in 2016.[2] As no proceedings are on foot, leave is necessary to reconsider the application to discontinue and restore the matter to enable to applicant to move the Appeal Panel to reconsider its decision.
[2] Reply to reconsideration application, p 19.
The applicant conceded at the arbitration hearing that he had no further right to appeal as he had previously exercised a right to appeal the original medical assessment certificiate (MAC). That concession is undoubtedly correct.[3]
[3] Sleiman v Gadalla Pty Ltd [2021] NSWCA 236.
The background to the allegations of injury suffered by Mr Baker were summarised by Roche DP as follows:[4]
“The appellant worker, Wayne Baker, worked as a general hand with the respondent employer, Southern Metropolitan Cemeteries Trust. His main duties included mowing and general cleaning and maintenance at the respondent’s Woronora Cemetery.
Mr Baker alleged that he suffered major depressive disorder due to numerous events that occurred in the course of, or arose out of, his employment with the respondent from 5 March 2012 (wrongly pleaded as 5 March 2013) to 25 September 2013. He alleged that, in this period, he was subjected to numerous instances of bullying and harassment, particularly (but not only) at the hands of a Tod Brown, a co-worker at the cemetery.
The problem came to a head on 26 September 2013. On that day, a Constable Taylor from Miranda Police Station contacted Mr Baker, investigating an allegation by Mr Brown that Mr Baker had falsely reported him to the police for carrying a gun in his vehicle and of having had an association with a bikie group. Mr Baker immediately stopped work and attended his general practitioner. He has not returned to work since.”
[4] Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 (Baker (No 2) at [2]-[4]).
Mr Baker was initially unsuccessful in establishing injury before an Arbitrator of the Workers Compensation Commission.[5]
[5] Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCC 201 (Baker (No 1)).
On appeal the Arbitrator’s decision was revoked and remitted to another Arbitrator for re-determination.[6] The evidence of the personality differences between the applicant and other co-workers included the following summary:[7]
“… while several of Mr Baker’s complaints were challenged in statements by co-workers, many others were conceded. For example, the evidence from Messrs Kennedy, Pascoe and Ramsey, summarised at [17]–[18] above provides overwhelming support for Mr Baker’s assertion that, from the start of his employment with the respondent, he had been ostracised and snubbed by co-workers.
Further, Mr Brown admitted that the paperclip incident occurred. Whether he intended to flick the paperclip onto Mr Baker, and whether the incident was trivial or serious, is not the point. Mr Baker took offence at what happened, as is evidenced by his complaint to Mr Ramsey about it. The incident was a real event that occurred at work during work hours.
More significantly, the incident on 11 June 2013, when Mr Brown directed grossly offensive and threatening language at Mr Baker, also happened. The fact that Mr Brown did not threaten Mr Baker with physical harm is irrelevant. Mr Baker reported the incident to Mr Tiley and, on Mr Tiley’s evidence, described the incident as “serious bullying allegations”. At the ensuing meeting, Mr Donaldson agreed that Mr Baker complained that the harassment and bullying had been going on for over a year, which is confirmed by Ms Azzi’s evidence at [29] above. He also agreed that Mr Brown and Mr Baker had a “big personality problem”. The animosity between the two men was such that Mr Tiley saw fit to attempt to keep them apart.”
[6] Baker (No 2).
[7] Baker (No 2) at [96]-[98].
The MAC issued on 21 March 2016 assessed Mr Baker as having a 9% permanent impairment.[8] The medical assessment certificate assessed the psychiatric impairment rating scale (PIRS) categories as follows:
·        Self-care and personal hygiene – 2;
·        Social and recreational activities – 3;
·        Travel – 2;
·        Social functioning – 2;
·        Concentration, persistence and pace – 2, and
·        Employability – 5.
[8] Reply to reconsideration application, p 17.
The appeal to an Appeal Panel was dismissed.[9] The Appeal Panel noted that the applicant’s history to doctors compared with his evidence under cross-examination was viewed as “somewhat economical with the truth”.[10]
[9] Reply to reconsideration application, p 1.
[10] Reply to reconsideration application, p 5.
The matter resolved on 7 October 2016. The consent orders issued at that time were:
“1.     Award for the applicant pursuant to s 37 of the 1987 Act at the rate of $650 per week from 2 May 2014 to 23 March 2016;
2.     Award for the respondent thereafter.
3.     Leave granted to otherwise discontinue the Application.”
At the arbitration hearing on 1 November 2023 Mr Coombes of counsel appeared for the applicant and Ms Warren of counsel appeared for the respondent. The following documents were admitted by consent:
(a)    Application for reconsideration and attachments (Application);
(b)    Response to reconsideration and attachments;
(c)    applicant’s submissions, and
(d)    respondent’s submission.
Leave was granted to the applicant to file subsequent submissions because I raised the relevance of the decisions of the Court of Appeal in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales[11] and Skates v Hills Industries Ltd.[12]
[11] [2007] NSWCA 149 (Riverina Wines).
[12] [2021] NSWCA 142 (Skates).
The applicant filed further submissions in accordance with that direction.

THE BASIS OF THE APPLICATION

Section 378 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) previously provided that an Appeal Panel may “reconsider any matter that has been dealt with” by the Appeal Panel. That section was repealed on 1 March 2021.[13]
[13] Sch 6, cl 6.11 of the Personal Injury Commission Act 2020 (PIC Act).
Various rights that were repealed by the Personal Injury Commission Act 2020 (PIC Act) were saved by the transitional provisions. Specifically, the applicant relies on cl 14D of Sch 1 of the PIC Act which refers to an unexercised right to commence non-court proceedings. By virtue of that provision, the applicant requests the Appeal Panel to reconsider its decision under s 378 of the 1998 Act.
An unexercised right is defined in cl 14A to mean a right, including a right exercisable only with leave or other permission, that:
(a) was available to be exercised immediately before the establishment day, and
(b) had not yet been exercised before that day.
The establishment day is 1 March 2021.[14]
[14] Section 6 of the PIC Act.
Clause 14D relevantly provides:

“14D UNEXERCISED RIGHTS TO COMMENCE NON-COURT PROCEEDINGS

(1) This clause applies in relation to an unexercised right to commence pre-establishment proceedings before an original decision-maker other than a court.
(2) A person who has the unexercised right to commence proceedings may commence the proceedings with the new decision-maker for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates.”

A right to have the Appeal Panel reconsider its decision falls within the meaning of “Pre-establishment proceedings”.[15]
[15] Sxch1, cl 14 of the PIC Act.
The basis upon which the reconsideration is sought by the Appeal Panel, is said to be “significant deterioration in the worker”.[16]
[16] Applicant’s submissions, [6].
At the hearing it was brought to the parties’ attention that the proceedings had been discontinued. The applicant then moved to reconsider the previous discontinuance, restore the proceedings to enable the present application to be heard by the Appeal Panel.

Dimos v Gordian Runoff Ltd [17]

[17] [2023] NSWSC 1151 (Dimos).

At the hearing the parties agreed that I would apply the principles discussed in Dimos to the meaning of “unexercised right” in cl 14D, specifically that the only documentation relevant to the determination of whether the applicant had an unexercised right was that material available to the parties prior to 1 March 2021.
The applicant’s subsequent submissions varied from that presented at the hearing. Accordingly, prior to addressing the applicant’s subsequent submissions, it is necessary to articulate what was decided in Dimos.
In Dimos the unexercised right was the making of a further application by the insurer under
s 62 of the Motor Accidents Injuries Act 1999 (1999 Act) based on “additional relevant information”. The insurer asserted the right (not the claimant) because it alleged that the additional information meant that the impairment should be reassessed in light of the additional material and assessed below the threshold.
Prior to the commencement of the PIC Act, the delegate was obliged to give reasons for accepting an application to allow a further application pursuant to s 62 of the 1999 Act. The issue of whether there was an “unexercised right” concerned the obligation of the delegate to provide reasons in circumstances were that obligation did not arise after 1 March 2021.
The Court articulated three constructions advanced by the parties as to when an unexercised right was available. Those constructions were:[18]
“(a) First, the right in s 62 is an ‘unexercised right’ to refer a matter for further medical review that is ‘available to be exercised’ once a medical certificate has been issued under s 61...
(b) Second, the word ‘may’ in cl 14D is to be construed permissively such that cl 14D only applies if the moving party chooses to make an application for an exercise of a function as an ‘unexercised right’...
(c) Third, the right in s 62 is only ‘available to be exercised’ in circumstances where the facts underlying an application for referral existed prior to 1 March 2021 and those facts were ‘available’ to the party.”
[18] Dimos at [36].
Construction (b) was subsequently withdrawn by the insurer and the Court noted that this construction did “not reflect the operation of the statutory scheme”.[19]
[19] Dimos at [38].
The Court then noted that an unexercised right was defined as being “exercised immediately before the establishment day” and, in the context of s 62 of the 1999 Act fell within the definition of unexercised right if:[20]
“That will be the case when before the establishment date of the 2020 Act:
(1) there had been a medical assessment under the 1999 Act;
(2) the injury had either later deteriorated or additional relevant information about it existed and thus a s 62 application was available to be made; but
(3) no such application had been made.”
[20] Dimos at [58].
The Court stated:[21]
It is only when all three requirements are met that a s 62 right will be an “unexercised right” to which cl 14D applies. It will fall to the applicant to establish this, as well as on the s 62 application, that what is relied on is “capable of having a material effect on the outcome of the previous assessment”.
[21] Dimos at [59].
Later her Honour stated:[22]
“In the case of a s 62 application, for example, there may in some cases be a dispute about whether cl 14D applies. That depends on the existence of either a deterioration in the injury or additional relevant information before the establishment date. In the event of dispute, that will be a matter for the President to determine, that affecting as it does the regime under which the application must be decided.
The resolution of such a dispute is necessarily separate from the determination of the s 62 application itself. It also requiring the applicant to establish that the deterioration or additional information is “capable of having a material effect on the outcome of the previous assessment”. (emphasis added)
[22] Dimos at [69] – [70].
Further the Court concluded:[23]
“I am satisfied that as was also Ms Dimos’ case, it must be accepted that the insurer’s s 62 application fell within the definition of “unexercised rights”. That is because:
(1) it was agreed at the hearing that the disputed 2014 clinical records had been in the insurer’s hands since 2018, even before the 2020 assessment of the parties’ medical dispute;
(2) its s 62 application had thus been available to be made before the establishment day, despite the insurer not having put the information which those records contained before the assessor, as it could have; and
(3) its application was only made in 2022, after the 2020 Act came into operation.”
[23] Dimos at [77].
I interpret from these paragraphs that the Court accepted the third construction set out at [25], that is that the right is only available to be exercised “when the facts underlying an application for referral existed prior to 1 March 2021 and those facts were available to the party”. Clearly the Court did not accept the first construction as it did not state in the various paragraphs that the unexercised right solely arose following the issuing of the previous medical assessment certificate.

Application of Dimos to reconsideration rights under s 378

As was previously noted, the right in Dimos was a right by the insurer to make a further application under s 62 of the 1999 Act. The present matter, as the applicant contended, involved a right to request an Appeal Panel to reconsider its decision based on deterioration. Whilst it did not contend that this application was an appeal based on deterioration, the right to reconsider was purportedly based on similar principles.
The parties in this matter proceeded on the basis that the applicant had to show that he had a right to seek a reconsideration of the MAP based on deterioration as at the establishment date. It was submitted that the applicant’s statement evidence and the attached “ADL” table was sufficient to satisfy the right to make the claim for deterioration.
It was in response to this oral submission at the arbitration hearing that the parties were referred to the Court of Appeal decisions of Riverina Wines and Skates.
The only material before me and referred by the applicant predating the establishment date was a statement dated 25 February 2021 and document headed “Activities of Daily Living” dated 25 February 2021.[24]
[24] Applicant’s application, p 11.
The initial written submissions included in the application for reconsideration, drafted prior to Dimos, provided that subsequent evidence, such as the report of Dr Lim dated
[25] Applicant’s application, p 3, [22].
16 August 2021, could establish deterioration prior to the establishment date when the applicant had deteriorated.[25]
Ms Warren in her oral submissions noted that some of the evidence referenced by the applicant post-dated the relevant date. The applicant’s counsel then disavowed reliance on that evidence and only relied on the addendum to the applicant’s statement. The applicant accepted, consistent with the principles in Dimos, that under cl 14D he could only rely on the material available at the establishment dated.
A report of Dr Samuel Lim dated 30 April 2021 assessed the applicant permanent impairment caused by injury at 22%.[26]
[26] Applicant’s application, p 15.
The statement dated 25 February 2021 includes the following matters:[27]
·        the applicant’s education and employment history;
·        his marital status and separation in the latter part of 2020;
·        a detailed summary of the numerous instances of bullying and harassment co-workers of the respondent,[28] and
·        attaches the “ADL”.
[27] Applicant’s application, p 7.
[28] At [9] – [23].
The document headed “Activities of Daily living” refers to a number of matters including:
·        the applicant forgetting to eat, shower or brush his teeth;
·        loss of spousal relationship and loss of libido;
·        loss of contact with family and friends;
·        no social contacts outside the home;
·        memory has gone and an inability to concentrate;
·        lethargy and hesitates to leave the house;
·        anxious about leaving the house and spends most of the time at home;
·        poor sleep, and
·        unable to work.
Ms Warren referred to subsequent evidence filed by the insurer which disputed deterioration and otherwise noted that there were other causes for this deterioration.
In Riverina Wines Campbell JA stated:[29]
“‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the “deterioration” that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
[29] At [94], Hodgson JA agreeing at [1].
The medical assessment is conclusive evidence of “the degree of permanent impairment of the worker as a result of an injury”.[30] That resolution not only includes an assessment of the degree of permanent impairment but whether that permanent impairment is as a result of injury.
[30] Section 326(1)(a) of the 1998 Act.
In subsequent submissions, after referring to an earlier decision of mine,[31] the applicant submitted:[32]
“[T]he deterioration relates to the matters previously referred to in medical assessment, confirmed by the MAP, as opposed to deterioration of any potential overall impairment.”
[31] O’Callaghan v Energy World Corporation Ltd [2015] NSWWCC 261 (O’Callaghan).
[32] Further submissions, [3].
The decision of O’Callaghan is not relevant to the current dispute. In that matter the applicant sought to add a body part (the cervical spine) that was not previously considered by the original Medical Assessor as part of an allegation that there has been a deterioration in the permanent impairment. The subject sentence set out above referred to the proposition that a claim for deterioration could not be based on other body parts not part of the original assessment.

That decision was upheld on appeal.[33] There is no suggestion in this matter that the applicant has included other body parts which were not part of the original MAC or MAP. I do not accept that the decision of O’Callaghan is relevant to this application.
[33] O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1.
In any event, a portion of a sentence expressed by me eight years previously, if read as the applicant asserted, is inconsistent with the observations of Campbell JA in Riverina Wines, specifically the sentence:[34]
“In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC.”
[34] Riverina Wines at [94].
The applicant further submitted that the deterioration had occurred prior to 1 March 2021 and that the reconsideration of the certification of the MAP “cannot occur until the worker is reassessed if he succeeds in his application.”[35]
[35] Further submissions, [7].
It is not to the point that the applicant has not been assessed by an Appeal Panel for deterioration. The issue is whether he has a right to set aside the discontinuance and request the Appeal Panel to reconsider his impairment for deterioration. In my view that right requires an opinion from an appropriate medical practitioner that there has been a deterioration in the degree of impairment as a result of the injury. Absent that evidence, I do not accept that there is a basis to assert that there has been deterioration, as it is understood, and discussed in Riverina Wines.
Putting to one side the respondent’s evidence as to other causes for the deterioration and solely examining the applicant’s evidence as at the establishment date, the material does not provide any basis of a causal link between the purported deterioration of the applicant and the work injury. In my view that did not occur until the applicant had obtained the report of
Dr Lim in April 2021. That view is consistent with the applicant’s submission that:[36]
“The relevance of the timing of the medical evidence in support of this application being post 28 February 2021 is that the worker did not know as a matter of medical opinion, to bring his case until he read the relevant reporting, of Dr Lim. It was not until he read that reporting he could exercise his pre-existing right to put on this application.”
[36] Applicant’s supplementary submissions, [16].
In my view there was no basis for a claim for deterioration until the applicant had obtained
Dr Lim’s report. Based on the material at hand as of 1 March 2021, any application to rescind the discontinuance of the proceedings and refer the matter to an Appeal Panel was without foundation. For these reasons I am not satisfied that the applicant had an unexercised right as of 1 March 2021.
In my view this conclusion is consistent with the observations in Skates that it is the medical dispute that is before the Medical Assessor, and by extension, before any Appeal Panel.[37]
[37] Skates at [81].
For these reasons I decline to make the orders requested by the applicant.
There is a separate issue whether I should exercise the discretion if the applicant had established an unexercised right. I refrain from undertaking that task in circumstances where I am not satisfied that the applicant had an unexercised right to proceed with the reconsideration application.

CONCLUSION

The order is set out in the Certificate of Determination.

[2023] NSWPIC 593

8 November 2023