BEX v Koskela Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BEX v Koskela Pty Limited [2023] NSWPIC 174
APPLICANT:	BEX
RESPONDENT:	Koskela Pty Limited
Member:	John Isaksen
DATE OF DECISION:	20 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application for reconsideration to revoke a Certificate of Determination (COD) regarding lump sum compensation following Medical Assessment Certificate and decision of Medical Appeal Panel; worker claims a deterioration of his condition and/or additional relevant information that was not previously available to the worker; reference to Samuel v Sebel Furniture Limited and Railcorp NSW v Registrar of the WCC of NSW; Held – COD revoked; matter remitted to President of the Personal Injury Commission to determine if at least one of the grounds in section 327 has been made out, and if so, whether the matter can be referred for a further assessment as an alternative to an appeal.
determinations made:	The Commission orders: 1. The Certificate of Determination dated 15 June 2020 is revoked pursuant to s 57 (1) of the Personal Injury Commission Act 2020. 2. The matter is remitted to the President to determine: (a) if at least one of the grounds for appeal specified in s 327 (3) of the Workplace Injury Management and Workers Compensation Act 1998 has been made out; and, if so (b) whether this matter can be referred for a further assessment of permanent impairment as an alternative to an appeal as provided for by s 329 (1) of the Workplace Injury Management and Workers Compensation Act 1998. The Commission notes: 1. The respondent wishes to make submissions on the outstanding issues set out in order no.2 above.

STATEMENT OF REASONS

BACKGROUND

The applicant, BEX, sustained an injury to his lumbar spine on 21 July 2017 in the course of his employment with the respondent, Koskela Pty Limited.
The respondent accepted liability for this injury.
Dr Mellick, Approved Medical Specialist, issued a Medical Assessment Certificate (MAC) on 25 February 2020 which assessed the applicant as having 7% whole person impairment as a result of injury to the lumbar spine and 0% whole person impairment for consequential conditions affecting the urinary and reproductive system.
An Appeal Panel confirmed the MAC dated 25 February 2020 in a decision dated
11 May 2020.
The Workers Compensation Commission issued a Certificate of Determination on
15 July 2020 as follows:
“The Commission determines:
1.     The applicant suffers 7% permanent impairment resulting from injury on 21 July 2017.
2.     The applicant has no entitlement to lump sum compensation resulting from injury on 27 July 2017.
Brief statement of reasons
3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act1998.
4. The claim for compensation was made on or after 19 June 2012. The applicant did not reach the threshold for entitlement to compensation, as required by section 66(1) of the Workers Compensation Act1987.
5.     The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
The Workers Compensation Commission issued a Certificate of Determination – Consent Orders on 13 October 2020 wherein the respondent agreed to pay for the applicant to undergo surgery proposed by Dr Abraszko, neurosurgeon.
The applicant underwent a L3-4 anterior interbody fusion performed by Dr Abraszko on
9 November 2020.
Dr Abraszko has now assessed the applicant as having 33% whole person impairment, which comprises 24% permanent impairment of the lumbar spine, 5% permanent impairment of the cervical spine, 1% permanent impairment for scarring, and 5% permanent impairment of the bladder.
On 19 November 2021 Member Wynyard dismissed an application brought by the applicant for “a further s 66 impairment on the basis of a threshold claim, a Reconsideration Application, an Appeal from the Previous Medical Appeal Panel Decision, and a Pre-filing Statement”.
On 25 January 2023 an application by the applicant for a reconsideration under s 329 (1A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) of the MAC of Dr Mellick dated 25 February 2020 was discontinued.
On 30 March 2023 the applicant forwarded correspondence to the Personal Injury Commission (Commission) headed: “THE APPLICATION TO SEEK A DELIVER ON REVOCATION OF CERTIFICATE DATED 15 JUNE 2020.” The applicant seeks the following:
“The appropriate relief is either to apply to the President pursuant to section 329 (1A) for referral to a Medical Assessor for reconsideration and/or alternatively to make an application or deliver a determination dated 15 June 2020 to be revoked pursuant to section 57 (1) of the Personal Injury Commission Act 2020.”
The applicant also wrote in the correspondence that “reconsideration relates to a threshold dispute and not in relation to a section 66 lump sum compensation claim”.
In a further letter written to the Commission dated 4 April 2023, the applicant writes: “As a compromise, I am claiming straightforward disc fusion and scar which is a uniform rating of 24% no matter the doctor who rates it.”
The matter was listed for a preliminary conference on 11 April 2023. BEX does not have legal representation. Mr Robinson from Hicksons Lawyers appeared on behalf the respondent.
Mr Robinson informed the Commission that the respondent did not consent to or oppose the application for reconsideration to revoke or set aside the Certificate of Determination dated 15 July 2020. The respondent has not provided any material in response to this particular application brought by the applicant.
However, if the Certificate of Determination was revoked or set aside, the respondent wished to make submissions as to whether the applicant can appeal the MAC pursuant to s 327 of the 1998 Act, or as an alternative, whether the matter can be referred for further assessment pursuant to s 329 of the 1998 Act.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute in this application:
(a) whether the Certificate of Determination dated 15 June 2020 should be reconsidered and set aside (s 57 of the Personal Injury Commission Act 2020 (the PIC Act)).

RELEVANT LEGISLATION

Section 322A of the 1998 Act provides:
“(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
Section 327 of the 1998 Act relevantly provides:
“(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) …….
(3) The grounds for appeal under this section are any of the following grounds—
(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the president is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) ………..
(6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of a determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.”
Section 57 of the PIC Act relevantly provides:
“(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.”

FINDINGS AND REASONS

The effect of ss 322A (3) and 327 (7) of the 1998 Act is that the applicant is barred from seeking an appeal of the medical assessment certificate dated 7 February 2020 or a further assessment as provided for by s 329 of the 1998 Act unless the Certificate of Determination dated 15 June 2020 is revoked or set aside.
The decision of Lizdenis v Central Pty Limited [2016] NSWWCC 21 (Lizdenis) is referred to by the applicant as a decision, albeit at an arbitral level, which does not restrict him to one claim for the assessment of permanent impairment if he is seeking to reach the threshold for a work injury damages claim or a finding that he is a worker with high needs. However, Harrison AJ took a different view in Sleiman v Gadalla Pty Ltd [2021] NSWSC 86 (Sleiman) when her Honour said at [115]:
“Section 294 of the 1998 Act unequivocally requires the Commission to issue a certificate of determination as soon as practicable after the determination has been made. Although the provision made for an appeals process s 327 is generally remedial in character, s 327(7) clearly states that there is no appeal from a medical assessment after such a certificate has been issued. In my view, these provisions evince an intention to provide for finality in the resolution of medical disputes. This intention is reflected elsewhere in the legislation, such as in 322A of the 1998 Act, which limits an injured worker to one assessment of his or her degree of permanent impairment.”
However, Harrison AsJ acknowledges the ability of the Commission to reconsider a Certificate of Determination involving an assessment of permanent impairment when her Honour said at [121]:
“Finally, as set out earlier, there is provision in the legislation for the Commission to reconsider decisions which are otherwise final and not subject to appeal. In the event that a person might seek to have such a decision reviewed on the basis of that his or her condition has deteriorated, s 350(3) provides a “broad” discretion by which the Commission may reconsider any matter it has dealt with and rescind, alter or amend it: see Martinovic at [91].”
The decision of the Court of Appeal in the subsequent appeal in Sleiman did not dismiss or alter those observations made by Harrison AsJ.
The ability of the Commission to reconsider a decision is now provided for by s 57 of the PIC Act, but that section has similar terms to the now repealed s 350 of the 1998 Act. A summary of the principles regarding a reconsideration that was set out in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141(Samuel) remains applicable to s 57(1) of the PIC Act, where DP Roche said at [58]:
“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
In my view, the applicant meets the fifth principle set out by DP Roche in Samuel. The L3-4 fusion surgery which occurred after the Medical Assessment Certificate issued by Dr Mellick, and the subsequent assessment by the applicant’s treating specialist, Dr Abraszko, of 24% permanent impairment of the lumbar spine and for scarring, is new or fresh evidence which quite obviously could not have been obtained with reasonable diligence prior to the examination which the applicant had with Dr Mellick on 12 February 2020.
In Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 (Railcorp NSW), AsJ Harrison said at [56]:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
This is not a situation where there is simply a different opinion being expressed by an expert on the issue of the degree of whole person impairment. Instead, this is a situation where there is new or fresh evidence due to the applicant undergoing lower back surgery after the MAC that was issued by Dr Mellick. It satisfies the test set by O’Meally J in Galea v Ralph Symonds Pty Ltd [1989] NSWCC 4; (1089) 5 NSWCCR 192 (Galea) at [201] that:
“…the applicant must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing….and that if believed would be at least a determining factor in the outcome of the case.”
There is evidence of a significant material change in the applicant’s condition as a result of the applicant undergoing surgery to his lumbar spine which warrants the Commission to exercise its “wide ranging” discretion to revoke the Certificate of Determination dated
15 June 2020 so as to allow the applicant to appeal the MAC pursuant to s 327 of the 1998 Act. Such a revocation will allow any “clear cut injustice” to the applicant to be rectified.
I also consider that the applicant meets the ninth principle referred to by DP Roche in Samuel for discretion to be exercised in his favour for the Certificate of Determination dated 15 June 2020 to be revoked. Section 354 (3) of the 1998 Act has now been repealed, but
s 43 (3) of the PIC Act is in the same terms, being:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In my view equity, good conscience and the substantial merits of this dispute should allow the applicant to have the Certificate of Determination dated 15 June 2020 revoked because of the intervening event of the L3-4 fusion surgery which the applicant underwent in November 2020 and which has the potential to change the assessment of his whole person impairment as a result of the injury he sustained.
The task which I was given was to determine whether the Certificate of Determination dated 15 June 2020 is to be revoked. I have provided my reasons as to why an order will be made for this to occur.
However, s 327 (4) provides that it is the President of the Commission who needs to be satisfied on the face of the application made by the applicant, and any submissions made to the President, that at least one of the grounds specified in s 327 (3) has been made out. It would appear from the correspondence sent to the Commission by the applicant that he relies upon sub-ss (3)(a) and (b).
Section 329 of the 1998 Act provides an alternative to an appeal against the MAC dated
7 February 2020. Section 329 provides as follows:
“(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a) the President as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
Section 329 (1)(b) allows for the Commission to refer this matter for further assessment, as opposed to an appeal pursuant to s 327. However, it is preferable for the President to consider and determine if s 329 is an appropriate alternative if the applicant can otherwise meet the threshold required by s 327 (3)(a) and/or (b).
The respondent has not consented nor opposed the application for reconsideration made by the applicant to revoke the Certificate of Determination dated 15 July 2020. However,
Mr Robinson advised at the preliminary conference on 11 April 2023 that the respondent wanted to make submissions on the application made by the applicant to appeal the MAC or, in the alternative, whether this matter can be referred for further assessment as provided for by s 329 of the 1998 Act.
The orders from this application will be:
(a) the Certificate of Determination dated 15 June 2020 is revoked pursuant to
s 57 (1) of the PIC Act;
(b) the matter is remitted to the President to determine:
(i)if at least one of the grounds for appeal specified in s 327 (3) of the 1998 Act has been made out; and, if so
(ii)whether this matter can be referred for a further assessment of permanent impairment as an alternative to an appeal as provided for by s 329 (1) of the 1998 Act.

[2023] NSWPIC 174

20 April 2023