Bessant v Newcastle Caravan City - [2023] NSWPIC 167

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bessant v Newcastle Caravan City [2023] NSWPIC 167
APPLICANT:	Mark Bessant
RESPONDENT:	Newcastle Caravan City Pty Limited
Member:	Brett Batchelor
DATE OF DECISION:	17 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Reconsideration Application by applicant worker to set aside Certificate of Determination (COD) issued following a Medical Assessment Certificate (MAC) issued in 2017; reconsideration Application on basis of significant deterioration in applicant’s condition as a result of further surgery on his cervical spine, following earlier surgery prior to the issue of the 2017 MAC; liability for the further surgery declined by the respondent on the ground that it was not reasonably necessary as a result of the work injury; this surgery had the effect of increasing the applicant’s whole person impairment (WPI); the applicant relied on section 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and section 66A(3)(a) of the Workers Compensation Act 1987 (1987 Act)to submit that the workers compensation legislation contemplated deterioration in an injured worker’s condition after issue of a MAC and COD based on that MAC; consideration of the former section 350 of the 1998 Act and matters discussed by Roche ADP in Samuel v Sebel Furniture Ltd as to the Personal Injury Commission’s power of reconsideration under section 57(1) of the Personal Injury Commission Act 2020; Held – workers compensation legislation is beneficial legislation, notwithstanding the insertion into the 1987 Act of section 66(1A) and into the 1998 Act of section 322A, discloses a cost saving objective; discretion to set aside COD exercised in favour of the applicant; determined that the worker sustained 34% WPI, assessed by the independent medical examiners retained by the applicant and the respondent as a result of the subject work injury.
determinations made:	1. Pursuant to s 57 of the Personal Injury Commission Act 2020 the Certificate of Determination dated 28 March 2017 is hereby rescinded. 2. It is determined that the 34% whole person impairment sustained by the applicant has resulted from the injury received by him to the cervical spine on 26 June 2003 in the course of his employment with the respondent.

STATEMENT OF REASONS

BACKGROUND

Mark Bessant (the applicant/Mr Bessant) suffered injury to the cervical spine on
26 June 2003 arising out of or in the course of his employment with Newcastle Caravan City Pty Limited (the respondent). He was treated by Dr John Christie, neurosurgeon, who arranged an MRI scan on 18 July 2003, which showed a large left C6/7 disc protrusion.
On 26 September 2003 Dr Christie operated on the applicant’s cervical spine, performing a C6/7 anterior cervical disc removal without fusion. This gave some improvement in the condition, enabling Mr Bessant to return to work.
On 15 November 2004 the applicant and respondent entered into an agreement in accordance with s 66A of the Workers Compensation Act 1987 (the 1987 Act) under which the applicant received lump sum compensation pursuant to s 66 of the 1987 Act in respect of 18% whole…

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 167
Decision Date: 17 April 2023

CaseChat Overview and Summary

In the matter of Bessant v Newcastle Caravan City, the applicant, an injured worker, sought reconsideration of a Certificate of Determination (COD) issued by the respondent, Newcastle Caravan City. The reconsideration was based on the applicant's significant deterioration in condition following further surgery on his cervical spine, which occurred after the issuance of a Medical Assessment Certificate (MAC) in 2017. The respondent argued that the additional surgery was not reasonably necessary as a consequence of the original work injury, and therefore, declined liability. The applicant, however, argued that the workers compensation legislation contemplated the possibility of a deterioration in an injured worker’s condition after the issuance of a MAC and a subsequent COD.

The court had to determine whether the workers compensation legislation, despite its cost-saving objectives, could accommodate the possibility of a deterioration in an injured worker's condition post the issuance of a MAC and a COD. The applicant cited provisions from the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Act 1987, specifically sections 327(3)(a) and 66A(3)(a), to support their claim. The court also considered the legislative history, particularly the former section 350 of the 1998 Act, and the discussion in Roche ADP in Samuel v Sebel Furniture Ltd about the Personal Injury Commission's power of reconsideration under section 57(1) of the Personal Injury Commission Act 2020.

The court concluded that the workers compensation legislation, while having a cost-saving objective, is beneficial legislation and must be interpreted to include provisions for deterioration in an injured worker’s condition after the issuance of a MAC and a COD. The court exercised its discretion to set aside the COD in favour of the applicant. It determined that the applicant sustained 34% whole person impairment (WPI) as a result of the work injury, based on assessments by independent medical examiners retained by both parties.

The court's final order was to set aside the COD and to determine that the applicant's whole person impairment was 34%, reflecting the condition following the further surgery on his cervical spine.

Orders