Bullen v Secretary Department of Planning and Environment

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bullen v Secretary Department of Planning and Environment [2023] NSWPIC 684
APPLICANT:	Robert Bullen
RESPONDENT:	Secretary Department of Planning and Environment
MEMBER:	Michael Moore
DATE OF DECISION:	20 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; respondent’s application for reconsideration of Certificate of Determination (COD); basis of application was that the COD for payment of section 66 lump sum compensation failed to take into account payments of section 66 benefits for a prior settlement pursuant to a complying agreement (entered into prior to 19 June 2012); applicant and his attorney aware of the terms of the prior settlement; Held – on the substantial merits of the application and the requirement to do justice to the parties the application for reconsideration should be allowed.
DETERMINATIONS MADE:	The Commission determines: 1. The date of injury where appearing in the medical assessment certificate dated 30 May 2023 in matter number W7236/22 is amended to read “14 November 2008”. 2. The certificate of determination in matter number W7236/22 dated 4 July 2023 is amended to read as follows: The Commission orders: 1. The respondent pay the applicant, as lump sum compensation under s 66 of the Workers Compensation Act 1987, $57,750 in respect of 30% permanent impairment resulting from injury on 14 November 2008. 2. The respondent to have credit for the payment of the sum of $22,000 previously paid to the applicant for lump sum compensation under s 66 of the Workers Compensation Act 1987. 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 Act 1998. 4. The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.

STATEMENT OF REASONS

BACKGROUND

This matter was previously before the Personal Injury Commission (Commission) in relation to a dispute as to whether the applicant had suffered a consequential condition to his left elbow in addition to his admitted right knee injury on 14 November 2008 and admitted consequential condition affecting his left knee.
The applicant was also seeking an assessment of whole of person impairment and benefits under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for the injuries and consequential condition sustained on 14 November 2008.
Following the issue of a certificate of determination on 16 March 2023 where it was held that the applicant had indeed suffered from a consequential condition affecting the left elbow in addition to the admitted injury to the right knee and consequential condition affecting the left knee the matter was referred to Dr Rob Kuru Medical Assessor for assessment of whole person impairment resulting from the injury to the right knee and consequential conditions to the left knee and left elbow with a date of injury of 14 November 2008.
It is to be noted that the date of injury on the front page of the certificate of determination was incorrectly stated as 14 August 2008 despite the fact that in the body of the decision the date of injury was always referred to as 14 November 2008.
A Medical Assessment Certificate was issued after the medical assessment by Dr Kuru dated 30 May 2023.
Dr Kuru assessed the applicant as suffering a whole person impairment of 18% as a consequence of the consequential condition of the left knee being a 20% Whole person impairment less a one tenth deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Dr Kuru further assessed the applicant as suffering a whole person impairment of 14% as a consequence of the injury to right knee being a 20% whole person impairment less a one third deduction under s 323 of the 1998 Act.
Finally Dr Kuru assessed the applicant as suffering a whole person impairment of 1% as a consequence of the consequential condition of the left elbow being a 1% whole person impairment less a one tenth deduction under s 323 of the 1998 Act.
The assessed impairments were combined by Dr Kuru to provide an assessed total whole person impairment of 30% as a consequence of the injury to the right knee and the consequential conditions affecting the left elbow and left knee.
As noted at point 5 above a medical certificate was issued on 30 May 2023 and a Certificate of Determination was issued on 4 July 2023.
The Certificate of Determination in order 1 provided that:
“The respondent pay the applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987, $57,750.00 in respect of 30% permanent impairment resulting from injury on 14 August 2008.”
The respondent has sought a reconsideration of the Certificate of Determination because it submits that the Certificate of Determination is in error because it fails to take into account previous lump sum compensation paid to the applicant being an amount of $22,000 in respect of 15% whole person impairment pursuant to s 66 of the 1987 Act and $16,000 in respect of pain and suffering pursuant to s 67 of the 1987 Act.
The amounts referred to in paragraph 12 above were paid to the applicant pursuant to a Complying Agreement under s 66A of the 1987 Act dated 2 April 2012 (the complying agreement).
A copy of the Complying Agreement was attached to the reply filed by the respondent in the proceedings however the details recorded in same were not completely legible and the copy document as attached was incomplete.
The applicant opposes the reconsideration of the Certificate of Determination sought by the respondent.
On 28 September 2023 a teleconference was held before me where firstly amendments to the Medical Assessment Certificate and Certificate of Determination were made correctly noting the date of injury in each document as being 14 November 2008. This amendment was made by consent.
On 28 September 2023 directions were also made that the respondent file and serve its application for reconsideration including reasons for the request for reconsideration, the subject matter of the request and submissions in support on or before 20 October 2023.
The applicant was directed to file a response to the respondent’s application for reconsideration by 10 November 2023.
For various reasons there was some slippage in the timetable set out in my directions of
28 September 2023 with the applicant’s response to the application for reconsideration only being received by the Commission on 29 November 2023.

ISSUES FOR DETERMINATION

The issue for determination is whether the substantial merits of the application and the requirement of the Commission to do justice to the parties justify the granting of the application for reconsideration for an amendment to the Certificate of Determination as sought by the respondent having regard to the desirability of finality of litigation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties were informed of my intention to determine the dispute on the basis of the parties written submissions without holding a hearing.

EVIDENCE

Documentary evidence

The following documents were before the Commission and considered in making this determination:
(a) Application for reconsideration of the certificate of determination filed by the Respondent and attachments (the respondent’s submissions), and
(b) Response to the application for reconsideration filed by the applicant and attachments (the applicant’s submissions).

FINDINGS AND REASONS

The submissions of the respondent (being the applicant on the application for reconsideration) can essentially be summarised as follows:
(a)    the Medical Assessment Certificate by Dr Kuru dated 30 May 2023 assessed the applicant as suffering from a whole person impairment as a consequence of the right knee injury and the consequential conditions affecting the left knee and left elbow;
(b)    the assessment of Dr Kuru encompassed all of the injuries and consequential conditions that the applicant suffered as a consequence of the event of injury on 14 November 2008;
(c) the certificate for determination provided for the payment to the applicant of the sum of $57,750 which was in error as the certificate did not allow the respondent to have credit for payments that were made by the respondent pursuant to the complying agreement whereby the applicant had been previously paid $22,000 in respect of 15% whole person impairment pursuant to s 66 of the 1987 Act and $16,000 in respect of pain and suffering for impairments resulting from the same event of injury on 14 November 2008;
(d)    that payment to the applicant of the sum set out in the certificate of determination without deduction of the amounts previously paid under the complying agreement would amount to a payment of double compensation which is against the intention and principles of the 1987 Act;
(e)    that the Medical Assessor was requested only to assess the extent of the whole person impairment and was not asked to, was not expected to and did not make any deduction for any compensation previously received for the subject injuries;
(f) that the deductions made pursuant to s 323 of the 1998 Act were made only on the basis of the pre-existing conditions found by Dr Kuru at the time of his examination as noted in the Medical Assessment Certificate and as reproduced at point 12 of the respondent’s written submissions;
(g)    that the failure to assess the entire degree of permanent impairment arising from all of the physical injuries and then deduct the compensation previously paid for a subset of those injuries is an error justifying reconsideration of the Certificate of Determination, and
(h) that the Certificate of Determination should be amended to reflect a deduction for the compensation previously received sum of $22,000 for s 66 benefits resulting in an amount payable to the applicant in the sum of $35,750.
The applicant’s response to the respondent’s application for reconsideration of the certificate of determination and submissions in support are, with the greatest respect to the applicant’s solicitor, somewhat difficult to understand. However as I understand them the argument is that the earlier complying agreement whereby compensation had been paid under ss 66 and 67 of the 1987 Act was compensation for a range of conditions including shoulder pain, triceps ligament, bursitis of the right hip, a knee condition, a psychological injury and neck pain and that the deductions made under s 323 of the 1998 Act for the right knee, left knee and left elbow impairments in the present proceedings reflected the payments made for those conditions in the previous claim.
The applicant in his submissions attached two documents in support of the argument advanced by him – the first a return to work report dated 9 March 2012 prepared by IMAC and the second a report by Katrina Burnham dated 10 September 2012 assessing the applicant’s fitness to continue duty.
Attached to the respondent’s submissions is a clear copy of the complying agreement that was attached to the reply but which was only partially legible as noted at point 14 above.
The complying agreement clearly states that the relevant date of injury for purposes of payment of lump sum compensation under s 66 of the 1987 Act is 14 November 2008.
The complying agreement also records that the date of the making of the claim for lump sum compensation to be paid pursuant to the terms of the complying agreement was
13 February 2011.
In my view there can be no argument that the applicant received lump sum compensation pursuant to the terms of the complying agreement for whole of person impairment resulting from injuries received on any date other than the noted date of 14 November 2008.
The present wording of s 66(1A) of the 1987 Act provides as follows:
“Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
Normally that would mean that the applicant would not be entitled to bring a further claim for lump sum compensation once he had entered into a complying agreement to receive lump sum compensation.
Section 66(1A) was part of the suite of amendments that was made to the 1987 Act by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act) and the transitional provisions consequent on enactment of the 2012 Amending Act are found in Schedule 6 Part 19H of the 1987 Act.
Clause 15A of Schedule 6 Part 19H of the 1987 Act provides in relation to lump sum compensation that:
“An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Accordingly the applicant was entitled to bring his further claim for lump sum compensation in these proceedings as the claim for lump sum compensation that resulted in the complying agreement was made on 13 February 2011.
With respect to the applicant’s submissions I note that the attached IMAC return to work document dated 6 March 2012 postdates the notice of claim for lump sum compensation on 13 February 2011 and there is no evidence before me that supports any suggestion that the IMAC return to work document dated 6 March 2012 formed any part of the material in support of the claim for compensation made on 13 February 2011.
With the greatest respect to the applicant the report of Ms Burnham dated
10 September 2012 is clearly irrelevant to the notice of claim for lump sum compensation made on 13 February 2011 and the subsequent complying agreement dated 7 March 2012 nonetheless I note that document’s contents do not assist the applicant’s submissions on the issue of the reconsideration application.
The report of Ms Burnham lists a whole series of injuries that the applicant suffered in or arising out of the course of his employment on various dates and identifies the parts of the body injured on each of those dates.
The series of injuries recorded by Ms Burnham lists as number 9 of that sequence or series of injuries as follows:
“14 November 2008 – Right Knee, Medial Meniscus Tear
Mr Bullen reported pain and swelling in his right knee and sought medical advice.”
There is no reference in Ms Burnham’s report to any other part of the body being injured on 14 November 2008 although there is reference at point 11 of her report to the fall on
1 November 2011 where injury was sustained to the left elbow and left shoulder. That fall has, of course, been found to be a consequential condition of the injury received on
14 November 2008.
There is no support in my view for the argument that the complying agreement dated
7 March 2012 provided for lump sum compensation for permanent impairment resulting from injuries other than those sustained on 14 November 2008 and there is no evidence suggesting that the impairments covered by the complying agreement at that time were other than impairments involving the right knee and possibly the left knee with the left elbow not being found to be a consequential condition until this year.
I accept the respondent’s submissions that the deductions made by Dr Kuru under s 323 of the 1998 Act involved the Medical Assessor having regard to pre-existing medical conditions namely osteoarthritis in each knee and insertional tendinitis in the left elbow and that the Medical Assessor did not make any deduction under s 323 on the basis of the terms of the earlier settlement of a claim for lump sum compensation made by the applicant.
While I have some difficulty understanding the approach taken by the Medical Assessor to the deductions made for pre-existing conditions affecting each knee that is a matter that
[1] Section 326 1998 Act.
I cannot deal with as the medical assessment certificate is conclusively presumed to be correct on, inter alia, the degree of permanent impairment as a result of an injury and the degree to which any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality.[1]
The applicant has been assessed as suffering from a whole person impairment of 30% as a consequence of injuries received on 14 November 2008 and was previously awarded by the terms of the complying agreement lump sum compensation for 15% whole person impairment for injuries received on that date.
Because the present claim was made after 19 June 2012 the benefits payable to the applicant are calculated under the formula provided in the present form of s 66(2) of the 1987 Act which results in an award of $57,750 which is of course the lump sum amount that the applicant should receive for whole person impairment resulting from the event of injury.
I note that the existence of a prior complying agreement was disclosed in the reply, albeit not in a readily legible form, so that the applicant would have been put on notice of the earlier settlement (and indeed both the applicant and his solicitor would have been aware of same as the same solicitor is acting in the present proceedings) and the fact that the respondent wanted that settlement taken into account in the present proceedings.
I accept a failure to take into account lump sum benefits previously received under s 66 of the 1987 Act would result in the applicant receiving double compensation for the same impairments.
In my view on the substantial merits of the application and on the basis of the overriding obligation of the Commission to do justice to the parties this is a matter where the respondent’s application for reconsideration should succeed despite the desirability of finality in litigation.
Accordingly I allow the application for reconsideration of the certificate of determination and will vary the terms of the certificate of determination to enable the previous payment of lump sum compensation under s 66 of the 1987 Act to be taken into account.
For completeness I will also formally amend the date of injury in the certificate of determination while noting that this was previously done by consent on 29 September 2023 as noted in my direction of that date.

SUMMARY

The respondent’s application for reconsideration of the certificate of determination is allowed on the substantial merits of the application and the requirement to do justice to the parties.
The certificate of determination will be amended to give the respondent credit for amounts paid previously as lump sum compensation under s 66 of the 1987 Act.

[2023] NSWPIC 684

20 December 2023