BEX v Koskela Pty Limited - [2023] NSWPIC 174

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.

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.

Continue reading BEX v Koskela Pty Limited

Details

AGLC: BEX v Koskela Pty Limited [2023] NSWPIC 174
Case: [2023] NSWPIC 174
Decision Date: 20 April 2023

CaseChat Overview and Summary

The case of BEX v Koskela Pty Limited involved an application for reconsideration by a worker, BEX, who sought to revoke a Certificate of Determination (COD) issued under the Workplace Injury Management and Workers Compensation Act 1998. This COD related to a lump sum compensation decision following a Medical Assessment Certificate and a decision by a Medical Appeal Panel. BEX contended that his condition had deteriorated since the original assessment, and that additional relevant information was not previously available to him. The court was required to determine whether the application for reconsideration met the criteria under section 327 of the Act, which sets out the grounds for reconsideration.

The central legal issue before the court was whether BEX's application sufficiently demonstrated that new evidence or a change in circumstances warranted reconsideration of the COD. The court considered whether the application met the statutory requirements for reconsideration and whether the matter could be remitted for further assessment rather than proceeding directly to appeal. The decision referenced precedent cases such as Samuel v Sebel Furniture Limited and Railcorp NSW v Registrar of the WCC of NSW, which provided guidance on the interpretation and application of the reconsideration provisions.

The court concluded that the application did meet the statutory requirements for reconsideration. It found that the worker had raised valid points concerning a potential deterioration in his condition and the availability of new information. The court revoked the COD and remitted the matter to the President of the Personal Injury Commission. The Commission was tasked with determining whether at least one of the grounds for reconsideration under section 327 had been established, and if so, whether the matter could be referred for a further assessment as an alternative to an appeal. This decision ensures that the worker's claim for reconsideration is given due consideration, providing a pathway for potentially more comprehensive assessment of his condition and compensation needs.

Orders