Dominguez v De Martin and Gasparini Pty Ltd
[2021] NSWPIC 131
•21 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Dominguez v De Martin and Gasparini Pty Ltd [2021] NSWPIC 131 |
| APPLICANT: | Hugo Dominguez |
| RESPONDENT: | De Martin and Gasparini Pty Ltd |
| MEMBER: | Mr John Isaksen |
| DATE OF DECISION: | 21 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Application for reconsideration of an order to pay weekly payments of compensation; worker found to have no current work capacity as a result of injury to lumbar spine and left shoulder; worker also in receipt of weekly payments for a separate injury to the left ankle; issue as to the date when the worker claims weekly payments of compensation and when he is to be paid weekly payments of compensation; Held- decision reconsidered; Certificate of Determination amended to award weekly payments from date claimed in the ARD and consistent with Certificates of Capacity provided by the worker; credit to the respondent for weekly payments already made for separate injury to the left ankle. |
| DETERMINATIONS MADE: | 1. The decision of the Commission dated 7 January 2021 is reconsidered pursuant to section 57 (1) of the Personal Injury Commission Act 2020. 2. The following findings and orders are substituted on pages 1 and 2 of the Certificate of Determination dated 7 January 2021 as follows: 1. The applicant has established special circumstances under section 254 (3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998, which allows him to recover workers compensation benefits. 2. The failure to make a claim within six months after the injury happened was occasioned by ignorance as provided for under section 261 (4) of the Workplace Injury Management and Workers Compensation Act 1998. 3. The applicant sustained an injury to his lumbar spine and left shoulder in the course of his employment with the respondent by way of a disease injury as provided by section 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 14 October 2016. 4. An award for the respondent for the claims of injury to the cervical spine and right shoulder. 5. The applicant has had no current work capacity from 2 November 2017 as a result of the injury sustained to his lumbar spine and left shoulder. |
| ORDERS MADE | 1. The respondent is to pay the applicant weekly payments of compensation as follows: a. $2,145.30 per week from 2 November 2017 to 1 February 2018, pursuant to section 36 (1) of the Workers Compensation Act 1987; b. $1,997.77 per week from 2 February 2018 to 1 November 2018, pursuant to section 37 (1)(a) of the Workers Compensation Act 1987, and c. $1,006.40 per week from 2 November 2018 to 2 May 2020 pursuant to section 37 (1)(a) and section 44C (1) (preserved) of the Workers Compensation Act 1987. The award of weekly payments of compensation is to be reduced by the amount paid to the applicant for weekly payments between 2 November 2017 and 1 October 2018 for the separate injury to his left ankle. 2.The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment of the injury to the lumbar spine and left shoulder. 3. The matter is remitted to the Registrar for referral to an Approved Medical Specialist as follows: Date of injury: 14 October 2016 (deemed) Body Part: Lumbar spine; left upper extremity (shoulder) Method of Assessment: Whole Person Impairment 4. The following documents are to be forwarded to the Approved Medical Specialist: a. Application to Resolve a Dispute with attachments; b. Reply with attachments; c. Application to Admit Late Documents filed by the applicant on 4 November 2020; d. Application to Admit Late Documents filed by the respondent on 21 December 2020, and e. This Certificate of Determination and Statement of Reasons. |
STATEMENT OF REASONS
BACKGROUND
On 7 January 2021 a Certificate of Determination was issued in this matter which included the following:
“3. The applicant sustained an injury to his lumbar spine and left shoulder in the course of his employment with the respondent by way of a disease injury as provided by section 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 14 October 2016.
4. An award for the respondent for the claims of injury to the cervical spine and right shoulder.
5. The applicant has had no current work capacity from 2 October 2018 as a result of the injury sustained to his lumbar spine and left shoulder.”
An order was made that the respondent is to pay the applicant weekly payments of compensation as follows:
a. $2,145.30 per week from 2 October 2018 to 1 January 2019, pursuant to section 36 (1) of the Workers Compensation Act 1987 (the 1987 Act);
b. $1,997.77 per week from 2 January 2019 to 1 October 2019, pursuant to section 37 (1)(a) of the 1987 Act, and
c. $1,006.40 per week from 2 October 2019 to date and continuing, pursuant to section 37 (1)(a) and section 44C (1) (preserved) of the 1987 Act.
On 12 March 2021 the solicitors for the respondent wrote to the Commission seeking a reconsideration of the decision dated 7 January 2021, pursuant to section 350 of the Workplace Injury Management and Workers Compensation Act 1998, in regard to the award of weekly payments of compensation made to the applicant, having served submissions for a reconsideration upon the solicitors for the applicant on 4 February 2021.
The respondent submits that the award for weekly payments of compensation should commence from 2 November 2017, being the date claimed by the applicant in the Application to Resolve a Dispute (ARD), and not from 2 October 2018, being the day after weekly payments ceased to be paid to the applicant for a separate and unrelated injury to his left ankle.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the Certificate of Determination dated 7 January 2021 should be reconsidered (being now section 57 of the Personal Injury Commission Act 2020), and
(b) if so, whether the award for weekly of compensation is to be amended in accordance with the submissions made by the respondent.
PROCEDURE BEFORE THE COMMISSION
A timetable was issued for the parties to provide submissions as follows:
1. The applicant to file and serve submissions in response to the submissions made by the respondent in the Application for Reconsideration by 30 April 2021, and
2. The respondent to file and serve submissions in reply by 7 May 2021.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 4 November 2020;
(d) Application to Admit Late Documents filed by the respondent on 21 December 2020, and
(e) Application for Reconsideration filed by the respondent on 12 March 2021;
(f) Written submissions filed by the applicant on 30 April 2021, and
(g) Written submissions in reply filed by the respondent on 11 May 2021.
The respondent’s submissions
The respondent submits that the applicant claimed weekly payments from 2 November 2017 and that this commencement date was not modified or amended at the hearing.
The respondent submits that where the claim for weekly payments commenced from 2 November 2017, and it had been determined that the applicant had sustained injury as alleged to his lumbar spine and left shoulder, and to have at all times remained incapacitated for work as a result of that injury, then the weekly payments are to commence as of 2 November 2017. The respondent submits that the award for weekly payments cannot simply commence from the date on which weekly payments under an unrelated claim ceased to be paid.
The respondent submits that the determination for each entitlement period in sections 36 and 37 is made by reference to a weekly payment that has been ‘paid’ or ‘is payable’ to a worker. The respondent submits that sections 36 and 37 of the 1987 Act do not commence from some later date when the applicant can expect to receive a full award.
The respondent submits that the determination sought to prevent double (or dual) compensation being paid during a certain period, but the method to avoid dual compensation is to provide a credit to the respondent for the weekly payments made in regard to the separate claim for the injury to the left ankle. The respondent requests that there be a reconsideration of the decision dated 7 January 2021 and the award to be as follows:
(a) $2,145.30 per week from 2 November 2017 to 1 February 2018 pursuant to section 36 of the 1987 Act;
(b) $1,997.77 per week from 2 February 2018 to 1 November 2018 pursuant to section 37 of the 1987 Act, and
(c) $1,006.40 per week from 2 November 2018 to 2 May 2020 pursuant to section 37 of the 1987 Act.
The respondent to have credit for the weekly payments already paid during the above periods.
The respondent submits that weekly payments should cease at 130 weeks, being 2 May 2020, and there be no award of weekly payments pursuant to section 38 of the 1987 Act.
The applicant’s submissions
The applicant opposes the respondent’s application.
The applicant submits that the respondent did not argue at the hearing that weekly compensation should be paid from 14 October 2016 until July 2017.
The applicant submits that the award that has been made relates to a period in which the applicant was incapacitated and where he was sustaining a loss as a result and hence the award.
The applicant submits that the reference to double or dual compensation is unexplained nor is there any reference to legislation which supports such a proposition.
The applicant submits that if there is no entitlement to an award before the period from which the award commences, then no award can be made in the period. To suggest that an employer should have ‘credit’ for payments the employer may have made on a separate matter as a basis to diminish or dilute its statutory obligation relative to the injury and incapacity so found in the determination of the dispute is wrong and is put as a broad proposition without any foundation.
FINDINGS AND REASONS
The ability of the Commission to reconsider a decision is now provided for by section 57 of the PIC Act, but is in similar terms to section 350 of the 1998 Act. A summary of the principles regarding a reconsideration that was set out in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141(Samuel) remains applicable to section 57(1) of the PIC Act, where DP Roche said at [58]:
“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
Given that the issue raised by the respondent for reconsideration was not properly addressed at the hearing, and that an amendment made to the award as requested by the respondent would have a material effect upon the amount to be paid to the applicant and the amount of liability to be met by the respondent, I consider that the decision that was made on 7 January 2021 in this matter can be reconsidered within the parameters requested by the respondent. This is a situation where the Commission has a duty to do justice between the parties according to the substantial merits of the case.
The applicant submits that the respondent did not argue at the hearing that weekly compensation should be paid from 14 October 2016 until July 2017. However, the respondent does not contend that weekly payments should be paid for this period. The respondent contends that the award of weekly payments should commence from 2 November 2017 because that is the date claimed by the applicant in the ARD and the applicant has never sought to amend or modify that date.
The applicant has not given any reasons in his submissions as to why the award of weekly payments should commence from 2 October 2018. The applicant’s submission is that if there is no entitlement to an award before the period from which the award commences, then no award can be made in the period.
In the decision dated 7 January 2021 I set out my reasons as to why I found that the applicant has had no current work capacity since 2 October 2018. However, those reasons would also cover the period which is now in dispute, being from 2 November 2017 to 2 October 2018.
I could not locate a Certificate of Capacity which covers the date of 2 November 2017 for injury to the lumbar spine and left shoulder. However, Dr Lim issued a Certificate of Capacity on 12 October 2017 which certified the applicant as having no current work capacity from that date until 26 October 2017 for injuries which included the lumbar spine and left shoulder. Dr Lim issued a similar Certificate of Capacity on 23 November 2017 which certified the applicant as having no current work capacity from that date until 12 December 2017. Dr Lim issued further Certificates of Capacity until 16 July 2018 which certified the applicant as having no current work capacity for those same injuries.
Dr Ryan opined in his report dated 1 May 2018 that the applicant “has no capacity for work now.”
The evidence which I accepted in the decision dated 7 January 2021 establishes that the applicant has had no current work capacity due to the injury to his lumbar spine and left shoulder since 2 November 2017, being the date from which the applicant claimed weekly payments of compensation in the ARD.
Having reviewed the evidence and the submissions made by the parties on this application for reconsideration, I find that there was an entitlement to an award for weekly payments for the accepted injuries to the lumbar spine and left shoulder from the date claimed by the applicant, being 2 November 2017.
I accept the submission made by the respondent that sections 36 and 37 of the 1987 Act do not commence from some later date when the applicant can expect to receive a full award. The applicant’s entitlement to weekly payments became ‘payable’ when he was certified as having no current work capacity due to the accepted injuries to his lumbar spine and left shoulder, which in the opinion of the applicant’s general practitioner, Dr Lim, was from October 2017.
While the applicant has submitted that the award should not start from 14 October 2016 (which is conceded by the respondent), the applicant not provided reasons as to why the weekly payments should commence from 2 October 2018, and not from 2 November 2017.
The award of weekly payments of compensation will therefore be amended in accordance with the submissions made by the respondent to the following:
(a) $2,145.30 per week from 2 November 2017 to 1 February 2018 pursuant to section 36 (1) of the 1987 Act;
(b) $1,997.77 per week from 2 February 2018 to 1 November 2018 pursuant to section 37 (1)(a) of the 1987 Act, and
(c) $1,006.40 per week from 2 November 2018 to 2 May 2020 pursuant to section 37 (1)(a) and section 44C (1) (preserved) of the 1987 Act.
The respondent also seeks an order to have credit for the weekly payments of compensation already paid to the applicant during the periods referred to above for the separate injury to the left ankle. I understand the rationale for this request is to avoid dual benefits being paid to the applicant during the period from 2 November 2017 to 1 October 2018. However, the respondent has not referred to any provision of the workers compensation legislation that allows me to make such an order.
I consider an appropriate order to meet the issue of the payment of dual benefits is:
“The award of weekly payments of compensation is to be reduced by the amount paid to the applicant for weekly payments between 2 November 2017 and 1 October 2018 for the separate injury to his left ankle”.
The respondent also submits that weekly payments should cease at 130 weeks, being 2 May 2020, and there be no award of weekly payments pursuant to section 38 of the 1987 Act.
Section 38 (2) of the 1987 Act provides:
“A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.”
I have accepted that the applicant has had no current work capacity since November 2017 as a result of the injury the applicant sustained to his lumber spine and left shoulder. There is no indication from the medical evidence that I have accepted in that decision of the applicant being able to return to any form of suitable employment. That medical evidence makes it likely that the applicant will continue indefinitely to have no current work capacity.
However, there is also no evidence that the applicant has been assessed by the insurer of the respondent as having no current work capacity, so that the requirements of section 38 (2) have not been met in full.
The award of weekly compensation will therefore end as of 2 May 2020, but I would encourage the insurer of the respondent to approach the applicant’s entitlement to further weekly payments of compensation pursuant to section 38 in a reasonable and judicious manner. There seems to me no good reason on the available and accepted medical evidence that the applicant will continue indefinitely to have no current work capacity.
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