Carey v Disability Services Australia - [2022] NSWPIC 561

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Carey v Disability Services Australia [2022] NSWPIC 561
APPLICANT:	Christine Carey
RESPONDENT:	Disability Services Australia
Member:	Philip Young
DATE OF DECISION:	11 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Reconsideration application; applicant previously assessed at 6% whole person impairment and submits that additional material since then confirms her condition has deteriorated such that the commission should rescind the earlier certificate of determination pursuant to section 327 of the Workplace Injury Management and Workers Compensation Act 1998; Held – applicant’s condition has deteriorated since earlier Certificate of Determination (COD); the Personal Injury Commission in exercising its discretion rescinds the COD; it is in the interest of justice that the applicant’s mental condition be reassessed.
determinations made:	1. The Certificate of Determination dated 24 December 2020 is set aside pursuant to s 57 of the Personal Injury Commission Act 2020.

STATEMENT OF REASONS

BACKGROUND

Ms Christine Carey (the applicant) was employed by Disability Services Australia (the respondent) and suffered psychological injury deemed to have occurred on 24 October 2019.
This is a Reconsideration Application pursuant to s 57 of the Personal Injury Commission Act 2020 (2020 Act) to rescind a Certificate of Determination of 24 December 2020 reflecting a Medical Assessment Certificate issued on 19 November 2020 (MAC) by Professor Glozier.
The MAC concluded that the applicant’s whole person impairment as at 12 November 2020 was 6%.
A Reconsideration Application was lodged with the Personal Injury Commission (the Commission) on 7 July 2022. That Application supported by the applicant’s submissions relies upon additional material which the applicant suggests[1] confirms that the applicant’s condition had deteriorated since her assessment with Professor Glozier.
[1] Reconsideration Application at page 1.
The respondent promptly provided a Reply and submissions.
The matter came for teleconference before me on 9 August 2022 and a Direction for submissions was issued. Those submissions have now been received and are referenced below.

ISSUES

The issue in this matter is whether the applicant’s Reconsideration Application succeeds because the applicant has sufficient evidence to justify a deterioration of her condition thereby warranting the prior Certificate of Determination being rescinded. There are associated issues concerning legislation and case law.

PROCEDURE BEFORE THE COMMISSION

This matter came for teleconference on 9 August 2022 on which occasion Mr Robison of counsel instructed by Mr Tohme appeared for and with the applicant. Ms Gair solicitor appeared for the respondent and Mr Lacsina represented the insurer.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to determine the matter was enlivened.

DOCUMENTS BEFORE THE COMMISSION

The following documents were in evidence before the Commission:
(a)   Application to Resolve a Dispute lodged 17 August 2020 and attachments (Application);
(b)   Reply lodged 8 September 2020 and attachments (Reply);
(c)   Certificate of Determination – Consent Order issued 14 September 2020 (COD1);
(d)   Application to Admit Late Documents…

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 Carey v Disability Services Australia

Details

AGLC: Carey v Disability Services Australia [2022] NSWPIC 561
Case: [2022] NSWPIC 561
Decision Date: 11 October 2022

CaseChat Overview and Summary

The case of Carey v Disability Services Australia involves an application for reconsideration of a workers compensation certificate of determination. The applicant, Carey, had previously been assessed at 6% whole person impairment. She contends that additional information since the initial assessment confirms her condition has deteriorated, and she seeks for the commission to rescind the earlier certificate of determination under section 327 of the Workplace Injury Management and Workers Compensation Act 1998. The Personal Injury Commission was tasked with determining whether Carey's condition had indeed deteriorated since the original assessment and whether it was in the interest of justice to rescind the certificate of determination and reassess her condition.

The central legal issue before the court was whether Carey's condition had deteriorated since the initial assessment, warranting a reconsideration and reassessment of her whole person impairment. The court needed to examine the evidence presented by Carey to determine if there was sufficient grounds to rescind the certificate of determination. Furthermore, the court had to decide whether such a rescission was in the interest of justice.

The court found that Carey's condition had deteriorated since the original assessment. The Personal Injury Commission exercised its discretion to rescind the earlier certificate of determination. The court concluded that it was in the interest of justice to reassess Carey's mental condition due to the deterioration of her condition since the initial assessment. The commission's decision to rescind the certificate of determination and reassess Carey's condition was upheld.

The final orders of the court were that the earlier certificate of determination was rescinded, and Carey's mental condition was to be reassessed. The Personal Injury Commission was directed to conduct a new assessment of Carey's whole person impairment, taking into account the evidence of her deteriorated condition.

Orders