Cannell v Secretary, Dept of Communities and Justice
[2023] NSWPIC 215
•9 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Cannell v Secretary, Dept of Communities and Justice [2023] NSWPIC 215 |
| APPLICANT: | Cindy Cannell |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| SENIOR Member: | Elizabeth Beilby |
| DATE OF DECISION: | 9 May 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Claim in respect of lump sum benefit; applicant previously assessed at 12% whole person impairment (WPI), now wishes to be reassessed based upon deterioration of her condition; Held – finding that the Personal Injury Commission has jurisdiction to hear the application; the Certificate of Determination is set aside. |
| determinations made: | 1. The Certificate of Determination dated 25 January 2017 is set aside. |
STATEMENT OF REASONS
BACKGROUND
This matter involves an accepted injury sustained in 2013 to the applicant’s right knee.
The applicant made a claim in respect of whole person impairment in the Workers Compensation Commission (as it then was) on 13 August 2018. A Medical Assessment Certificate was issued by Dr Lewington on 16 August 2018 who assessed the applicant as having a 12% whole person impairment.
The Medical Assessment Certificate was appealed and was subsequently confirmed.
The applicant’s claim is that since the Medical Assessment Certificate was issued her right lower extremity has deteriorated generally and she has undergone a right total knee replacement which was performed on 14 August 2019.
The applicant essentially asks that the Certificate of Determination flowing from the Medical Assessment Certificate be revoked or set aside and the worker allowed to be reassessed to determine the applicant’s whole person impairment (following the right knee replacement and associated deterioration).
The respondent the opposes the reconsideration application or the revocation. This is on the basis that firstly that the Personal Injury Commission (Commission) lacks jurisdiction to reconsider the Certificate of Determination secondly there has not been demonstrated a deterioration, thirdly the substantive application lacks merit, in particular there is no explanation as to the delay, and finally that any application under s 378 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) offends s 66(1A) of the 1987 Act.
DOCUMENTS
This matter initially proceeded by way of submissions and also at arbitration. The Member that heard the matter was unable to determine the matter and as such it has been transferred to myself.
I am helpfully provided with audio copy of the submissions made at arbitration and the extensive written submissions from the parties. The written submissions include the following:
(a) submissions from the applicant dated 23 August 2022;
(b) submissions from the respondent dated 27 September 2022;
(c) submissions from the respondent dated 14 September 2022;
(d) submissions from the applicant dated 24 October 2022;
(e) submissions from the respondent dated 11 November 2022, and
(f) submissions from the applicant dated 19 December 2022.
PRIOR PROCEEDINGS
There is no issue that the applicant suffered an injury to her right lower extremity. That claim was then subject to an examination by Dr Lewington, Approved Medical Specialist (AMS), who assessed the applicant as having a 15% whole person impairment by way of Medical Assessment Certificate dated 16 August 2018.
The Medical Assessment Certificate was appealed by both the applicant and respondent. By way of decision of the delegate of the Registrar, dated 12 October 2018, the delegate referred the matter back to the AMS to clarify the assessment of whole person impairment.
The AMS identified an error in his previous assessment and issued a fresh Medical Assessment Certificate which assessed the applicant as having 12% whole person impairment.
The applicant then filed an appeal of the Medical Assessment Certificate which was dismissed by way of decision dated 27 February 2019 by the Medical Appeal Panel. The decision dated 2 November 2018 was confirmed.
On 4 April 2019 a Certificate of Determination was issued which directed the respondent to pay the applicant $17,050 in respect of 12% whole person impairment. That payment was made to the applicant on 12 June 2020.
On 27 February 2019, the applicant filed an application to reconsider the Medical Assessment Certificate which was declined.
On 15 December 2020 the applicant issued a further claim for lump sum compensation in respect of an injury to the right knee on 3 October 2013. This injury is in similar terms to the matter number 2754/18.
THE PRESENT APPLICATION
The applicant seeks an order to rescind the Certificate of Determination pursuant to s 350(3) of the 1998 Act so that an appeal against the Medical Assessment Certificate can be filed pursuant to s 327 of the 1998 Act.
Section 350(3) of the 1998 Act provides:
“(3) The Commission may reconsider any matter that has been dealt with by the Commission
and rescind, alter or amend any decision previously made or given by the Commission.”Section 327 of the 1998 Act 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) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(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.”
The applicant asserts there has been a significant deterioration in her condition such that she is entitled to appeal the Medical Assessment Certificate pursuant to ss 327(3)(a) and (b) of the 1998 Act.
The applicant has helpfully provided a statement in support of the deterioration dated 23 August 2022. In that statement she states that “following Dr Lewington’s assessment there has been an increase in pain, aching and additional giving way of the right knee as well as increased regional pain syndrome symptoms.”
The applicant points out that on 14 August 2019 she underwent a total knee replacement and she is now no longer able to raise her right leg. She is now no longer able to drive a motor vehicle and was required to have her car modified and to apply for a driver’s licence for use of an automatic modified vehicle. The applicant observes that the respondent insurer paid for the surgery, her driving lessons, her licence, and the car modification. The applicant explains that she continues to have pain management treatment with Dr Tame who has inserted a spinal cord stimulator in her back.
The applicant has now been assessed by Dr Waldon as suffering from a 37% whole person impairment.
JURISDICTION
A threshold jurisdictional question arose as to if the applicant has an “unexercised right” pursuant to Division 4A, Subdivision 3 of Schedule 1 of the Savings, Transitional and Other Provisions to the Personal Injury Commission Act (2020). This arises as prior to its repeal on 1 March 2021, s350(3) of the 1998 Act, permitted the Workers Compensation Commission to reconsider any matter that he previously been dealt with by the Commission and rescind, amend or alter its decisions already made.
The respondent submits that in order to obtain the benefit of clause 14D(2) the applicant would need to demonstrate that there was an “unexercised” right . The respondent points to the history in this dispute that is the application made on 19 May 2019 was based upon a medical report of Dr Osbourne which stated that the knee replacement surgery had been recommended for the applicant. The respondent then goes on to say that the current application is based upon the fact that the applicant has now undergone that surgery, the bases are therefore similar.
I am not persuaded that the applicant has “exercised her rights” as described by the respondent.
The first (and most powerful reason to my mind) is that the applicant’s condition is not the same as it was when that application was made. This is on the basis that both the surgery had not taken place and lesser concerns regarding CRPS. The applicant’s condition as it now is, has not been assessed and therefore her rights have not been ‘exercised’.
The respondent’s description of the ‘right’ being a reconsideration of an earlier Certificate of Determination, to my mind, is too narrow of a reading of the relevant legislation and provisions. It focuses the mind on the administrative process, not the nature of the right.[1] The relevant inquiry ought to be to inquire what right is the applicant seeking to be exercised? In this case it is the right to be assessed after surgery. To my mind that right has not been exercised.
[1] See Murray v Woolworths Group Limited [2020] NSWSC 1033.
CLAIM FOR PERMANENT IMPAIRMENT v THRESHOLDS
There have been extensive submissions filed in this matter. I have read all the submissions and take them in to account in forming my determination in this matter.
The starting point is that it is well-known that a Medical Assessment Certificate is conclusively presumed to be correct in respect of the matters provided by s 326.[2]
[2] Jaffarie v Quality Castings Pty Ltd (Jaffarie No. 2).
In this dispute, the applicant’s claim is that they wish to be reassessed to see whether she qualifies for payments pursuant to s 39 in respect of weekly compensation (payment beyond 260 weeks) and possibly Work Injury Damages.
What I believe is important in this matter is that there is a distinction between a claim for permanent impairment and one for various thresholds. Such an observation is consistent with decisions such as JC Equipment.[3] In that decision, his Honour Justice Tobias held:
(a) section 281 of the 1998 Act contemplates two different claims by the injured worker; a claim for compensation pursuant to s 66 of the 1987 Act, and also a claim for work injury damages; (at [50]);
(b) section 281(2B) of the 1998 Act mandates that the employer notify the claimant whether or not it accepts the degree of permanent impairment of the claimant resulting from the injury is “sufficient for the award of damages”. This is a reference to the minimum 15% degree of permanent impairment at s 151H(1) of the 1987 Act; (at [51]);
(c) section 313 of the 1998 Act contemplates a dispute as to whether the degree of permanent impairment of the injured worker is sufficient for an award of damages. Section 314 of the 1998 Act provides a mechanism for determining whether there is a dispute (at [56]);
(d) the statutory regime emphasises the dichotomy between damages and statutory compensation (at [59] and [60]), and
(e) the employer’s agreement or acceptance of a degree of permanent impairment for the purposes of s 66 of the 1987 Act, did not constitute acceptance that the degree of permanent impairment was sufficient to satisfy a s 151H threshold.
[3] JC Equipment Pty Ltd v The Registrar of the Workers Compensation Commission of New South Wales [2008] NSWCA 43.
Section 39(3) of the 1987 Act requires an assessment pursuant to s 65 of the 1987 Act which itself requires an assessment under Part 7 of the 1998 Act.
Section 322A(1) of the 1998 Act provides that there can only be one assessment “of the degree of permanent impairment of an injured worker”. Sub-section (2) provides that the certificate given is used for other purposes.
What is clear is that a claim for permanent impairment compensation is clearly distinct from a threshold claim. That is, despite the introduction of s 314(3), there remains a distinction between a claim for permanent impairment compensation and a claim for the purposes of establishing the threshold pursuant to s 151H of the 1987 Act.
CONSIDERATION
There is no dispute that the matter that had previously been referred for assessment was that of the right lower extremity. That is, there is no new claim such as an injury to the lumbar spine or cervical spine now made (in addition to the right lower extremity).
What is quite clear is that in the present matter the appeal under s 327 is an appeal against “a Medical Assessment Certificate”, s 327(1) is limited to “a matter as to which the assessment of an approved medical specialist certified in the Medical Assessment Certificate under this part is conclusively presumed to be correct”.
Having considered the submissions I am persuaded that the applicant has a right and entitlement to appeal the Medical Assessment Certificate for the purposes of establishing a threshold such as that provided by s 39 of the 1987 Act.
Member Harris in Galea[4] provides an exhausting analysis of the relevant legislation and case law and I follow his analysis and determination in this matter which is on all fours with the dispute in that matter.
[4] Galea v Colourwise Nursery (New South Wales) Pty Ltd [2019] NSWWCC 362.
In particular, at [71] Member Harris makes the following conclusions, which I agree with:
(a) the one Medical Assessment Certificate is used for all purposes (s 322A(2));
(b) the applicant’s statutory right to appeal the Medical Assessment Certificate pursuant to s 327 is protected by s 322A(4) of the 1987 Act;
(c) there is no time limit to appeal a Medical Assessment Certificate if the grounds for appeal are based on s 327(3)(a) and/or (b);
(d) the applicant’s entitlement to appeal is restricted to the matters referred for assessment. Those matters were the various body parts assessed by the AMS, and
(e) despite the fact the applicant has not made a threshold claim when the Medical Assessment Certificate was issued, the Medical Assessment Certificate4 determined that issue. Consistent with the clear statutory language it provides for an appeal against a Medical Assessment Certificate, the Medical Assessment Certificate can be appealed for the purpose of any threshold issue.
One argument raised in one of the s 78 Notices was that the applicant should be ‘estopped’ from having this matter reassessed. This however is not persuasive as I am of the view that there is no estoppel in a changing situation.[5] Given the significant change in the whole person impairment and the applicant’s description of her deteriorating condition and the surgery, I have formed the view that the applicant has a strong case of showing a deterioration in her assessment of permanent impairment.
[5] Abou-Haidar v Consolidated Wire Pty Limited [2010] NSWWCCPD 128 at [66].
THE DISCRETION
The respondent raises delay as a reason to militate against the discretion being exercised this application. The respondent points out that there was nothing to explain a delay between the applicant’s right total knee replacement on 14 August 2019 and the application for reconsideration filed on 23 August 2022.
The extent of the delay to my mind is not one which militates against the exercise of a discretion. The applicant was assessed by Dr Mark Waldon on 1 September 2020, by which time the applicant’s CRPS condition as described has deteriorated. The increase in whole person impairment seems to support such a finding. In addition, the applicant has been treated by a pain specialist which has been paid for by the respondent. It appears to be that there is no significant delay in bringing this application in the circumstances of a possible deteriorating complex regional pain syndrome, a knee replacement and ongoing treatment.
So far is necessary I am also satisfied that the applicant has discharged the onus on deterioration. Her statement describes her deterioration and when that is read with the surgery and CRPS symptoms, there can be no doubt, in my mind, that the applicant’s condition has arguably and most likely deteriorate. The extent of deterioration is a matter for assessment.
CONCLUSION
44. The applicant is entitled to file an application to appeal the Medical Assessment Certificate.
1
3
0