Cheers v MidCoast Council - [2023] NSWPIC 326

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cheers v MidCoast Council [2023] NSWPIC 326
APPLICANT:	Paul Cheers
RESPONDENT:	Mid Coast Council
Member:	Rachel Homan
DATE OF DECISION:	7 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; consideration of whether matter should be referred back to Medical Assessor (MA) where relevant documents were not included in the referral; consideration of the powers in section 329(1)(a) and 329(1A); Massie v Southern NSW Timber and Hardware Pty Limited considered; admission of late documents; Held – matter referred back to same MA for reconsideration pursuant to section 329(1A); late documents admitted pursuant to rule 67(4) of the Personal Injury Commission Rules 2021.
determinations made:	The Commission determines: 1. The matter is referred back to Medical Assessor Blom for reconsideration pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 as follows: Date of injury: 29 July 2022 (deemed) Body system: Psychological Method: Whole Person Impairment 2. The materials to be referred to Medical Assessor Blom are to include: a. the Application to Resolve a Dispute and all attachments; b. the Reply and all attachments; c. the supplementary report of Dr Yajuvendra Bisht, dated 4 January 2023, attached to the Application to Admit Late Documents lodged by the respondent on 23 January 2023; d. the supplementary statement, dated 23 January 2023, lodged by the applicant under cover of a letter from his solicitor dated 23 January 2023; e. the documents attached to the Application to Admit Late Documents lodged by the respondent on 22 February 2023, and f. the documents attached to the attached to the Application to Admit Late Documents lodged by the applicant on 29 March 2023.

STATEMENT OF REASONS

BACKGROUND

Mr Paul Cheers (the applicant) sustained a psychological injury arising out of or in the course of his employment with Mid Coast Council (the respondent).
Liability for the injury had previously been disputed but, at a preliminary conference on
20 January 2023, I was informed by the respondent that liability for the injury was now accepted.
Agreement was reached between the parties for the matter to be remitted to the President for referral to a Medical Assessor for an assessment of the degree of permanent impairment resulting from the injury. The matter was to be listed for further conference on receipt of the Medical Assessment Certificate to deal with outstanding disputes in relation to claims for weekly compensation and treatment expenses.
A timetable was also established for the lodgement of late evidence, including a supplementary report from the respondent’s Independent Medical Examiner, Dr Yajuvendra Bisht, dated 4 January 2023. I directed that any late documents lodged in accordance with the timetable were, in the absence of objection, admitted in the proceedings pursuant to
r 67(4) of the Personal Injury Commission Rules 2021 and to be included in the materials to be referred to the Medical Assessor.
The report of Dr Bisht was lodged by the respondent in accordance with the timetable.…

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.

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Details

Case: [2023] NSWPIC 326
Decision Date: 7 July 2023

CaseChat Overview and Summary

The case of Cheers v MidCoast Council involved a dispute regarding the proper assessment of a worker's compensation claim under the Workplace Injury Management and Workers Compensation Act 1998. The applicant, Cheers, sought to challenge the decision of the respondent, MidCoast Council, in relation to the assessment of his claim. The matter was heard in the Personal Injury Commission, where the primary focus was on whether the case should be referred back to a Medical Assessor (MA) for reconsideration due to the omission of relevant documents during the initial referral. Additionally, the court examined the applicability of sections 329(1)(a) and 329(1A) of the Act and the admissibility of late documents under rule 67(4) of the Personal Injury Commission Rules 2021.

The central legal issues before the court were whether the matter should indeed be remitted to the MA for reconsideration due to the exclusion of relevant documents in the original referral, and if so, whether the late documents could be admitted into the proceedings. The court had to interpret and apply sections 329(1)(a) and 329(1A) of the Act to determine the appropriate course of action. The case of Massie v Southern NSW Timber and Hardware Pty Limited was referenced to aid in the interpretation of these provisions and to understand the proper application of the rules governing the admission of late documents.

In its decision, the court held that the matter should be referred back to the original MA for reconsideration, pursuant to section 329(1A) of the Act. The court reasoned that the omission of relevant documents was significant enough to warrant a reassessment by the MA. Furthermore, the court found that the late documents could be admitted under rule 67(4) of the Personal Injury Commission Rules 2021, as there were no substantial grounds to prevent their admission. This decision ensured that the applicant's claim could be properly assessed with all relevant information considered.

The court ordered that the matter be referred back to the original MA for reconsideration, taking into account all relevant documents, including those that were previously omitted. Additionally, the court made an order admitting the late documents under rule 67(4) of the Personal Injury Commission Rules 2021, facilitating a comprehensive review of the claim.

Orders