Baker v Southern Metropolitan Cemeteries Trust - [2023] NSWPIC 593

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Appeal Panel was dismissed; application to Appeal Panel to reconsider its decision pursuant to section 378; section 378 repealed on 1 March 2021; discussion of unexercised rights in schedule 1 clause 14D of the Personal Injury Commission Act 2020; Dimos v Gordian Runoff Pty Ltd discussed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…

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 593
Decision Date: 8 November 2023

CaseChat Overview and Summary

In the case of Baker v Southern Metropolitan Cemeteries Trust, the applicant, Baker, sought to appeal a decision by an Appeal Panel that dismissed his application to reconsider the assessment of his permanent impairment. Baker had suffered a psychological injury in 2013 and was assessed by a Medical Assessor in 2016 as having 9% permanent impairment. The Appeal Panel's decision was made prior to the enactment of significant legislative changes, including the repeal of section 378 of the relevant legislation. Baker sought to rely on unexercised rights under schedule 1 clause 14D of the Personal Injury Commission Act 2020, arguing that he should be entitled to have his matter referred back to an Appeal Panel.

The court had to determine whether Baker satisfied the criteria for an unexercised right under the Personal Injury Commission Act 2020, and whether his application to have the matter reconsidered should be restored to an Appeal Panel. The court considered the requirements set out in Dimos v Gordian Runoff Pty Ltd and Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales, and examined the nature of Baker's evidence prior to the establishment day (1 March 2021). The court found that Baker's evidence, which was a statement and did not include a medical opinion establishing an increase in permanent impairment caused by the injury, did not meet the criteria for an unexercised right. Consequently, the court held that Baker did not satisfy an unexercised right, and there was no entitlement to restore the matter to refer to an Appeal Panel.

The court's decision was based on the interpretation of the relevant legislation and the application of legal principles to the facts of the case. The court found that Baker's evidence did not meet the criteria for an unexercised right, and therefore, the application to restore the matter to an Appeal Panel was unsuccessful. The court's decision highlights the importance of ensuring that all necessary evidence is provided in support of an application, particularly in cases involving unexercised rights under the Personal Injury Commission Act 2020.

The final orders of the court were that the application to restore the matter to an Appeal Panel was dismissed, and Baker was not entitled to have his matter reconsidered by an Appeal Panel. The court's decision in this case provides guidance on the interpretation and application of unexercised rights under the Personal Injury Commission Act 2020, and the importance of providing sufficient evidence to support an application.

Orders