Grasso v The Trustee for the Venton Group Trust
[2024] NSWPIC 718
•20 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Grasso v The Trustee for The Venton Group Trust [2024] NSWPIC 718 |
| APPLICANT: | Francesco Grasso |
| RESPONDENT: | The Trustee for The Venton Group Trust |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 20 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Personal Injury Commission Act 2020; reconsideration application; section 57; Samuel v Sebel Furniture Limited applied; Held – that application for reconsideration granted. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant’s application pursuant to s 57 of the Personal Injury Commission Act and s 329 of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. The Certificate of Determination issued on 11 October 2023 is rescinded. 3. The matter is remitted to the President for referral back to Medical Assessor Tommasino Mastroianni for assessment of whole person impairment as follows: (a) Date of injury: 19 August 2018 (b) Body system/parts: scarring (TEMSKI). 4. The Medical Assessor is directed to provide a further Medical Assessment Certificate that incorporates his assessment of whole person impairment of the right upper extremity and the right lower extremity assessed in his Medical Assessment Certificate dated 7 September 2023. 5. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute (including attachments); (b) Reply to Application to Resolve a Dispute (including attachments); (c) Medical Assessment Certificate dated 25 October 2022; (d) Medical Assessment Certificate dated 6 September 2023, and (e) a copy of this Certificate of Determination. |
STATEMENT OF REASONS
BACKGROUND
By application dated 22 October 2024, Francesco Grasso (the applicant) sought reconsideration of the Certificate of Determination issued on 11 October 2023 (the COD) and the Medical Assessment Certificate issued on 7 September 2023 (the MAC), pursuant to s 57(1) of the Personal Injury Commission Act 2020 (the PIC Act) and s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The Trustee for The Venton Group Trust (the respondent) opposes the application.
The background to this application is that:
(a) on 17 February 2022, the applicant claimed permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), for 18% whole person impairment (WPI) in respect of injury with a date of injury of 19 August 2018. The applicant relied on the report of Dr Yuk Kai Lee dated 2 November 2021;
(b) by report dated 2 November 2021, Dr Yuk Kai Lee, independent medical expert qualified by the applicant, assessed total 18% WPI, which was calculated on the basis of 8% WPI in respect of the right upper limb, 8% WPI in respect of the right knee and 3% WPI in respect of TEMSKI/scarring;
(c) by report dated 4 April 2022, Dr Raymond Wallace’s, independent medical expert qualified by the respondent, assessed total 9% WPI, which was calculated on the basis of 4% WPI in respect of the right upper limb, 5% WPI in respect of the right knee and 0% in respect of Table for the Evaluation of Minor Skin Impairment (TEMSKI)/scarring;
(d) on 25 May 2022, the respondent’s insurer issued a notice issued pursuant to s 78 of the 1998 Act, which disputed liability for the claim. The notice referred to the reports of the independent medical experts, Dr Yuk Kai Lee dated 2 November 2021 and Dr Raymond Wallace dated 4 April 2022;
(e) on 15 September 2022, the applicant commenced proceedings in the Personal Injury Commission (Commission) by way of Application to Resolve a Dispute (ARD) in relation to the claim for permanent impairment in respect of injury to the right upper extremity with a date of injury of 19 August 2018. The ARD described the injury as right hand fracture injury, in respect of which the applicant underwent three surgeries, including a failed bone grafting surgery from the right knee to use as a bone graft, and a consequential condition of the right knee as a result of the second surgery. The applicant’s supporting evidence included the report of Dr Lee. The insurer filed evidence in reply which included the report of Dr Wallace;
(f) on 6 October 2022, the Commission referred the matter to a Medical Assessor for assessment of WPI in respect of the right upper extremity and the right lower extremity only. The referral did not include TEMSKI/scarring;
(g) on 25 October 2022, a Medical Assessment Certificate was issued which stated that the applicant had not reached maximum medical improvement;
(h) on 30 November 2022, a Certificate of Determination determined that the degree of permanent impairment resulting from injury to the applicant on 19 august 2018 was not fully ascertainable and that the proceedings may be restored when the applicant attained maximum medical improvement;
(i) on 20 June 2023, the applicant submitted evidence of maximum medical improvement;
(j) on (approximately) 18 July 2023, the proceedings were restored seeking further referral to a Medical Assessor;
(k) on 19 July 2023, the Commission referred the medical dispute to a Medical Assessor for assessment of WPI in respect of the right upper extremity and right lower extremity. The referral did not include TEMSKI/scarring;
(l) on 7 September 2023, the MAC was issued which gave an assessment of WPI in respect of the applicant’s right knee and the right upper limb only. The Medical Assessor assessed total 20% WPI, calculated on the basis of 13% WPI for the right upper extremity and 8% WPI for the right lower extremity. The Medical Assessor did not give an assessment of WPI in respect of TEMSKI/scarring and stated (at page 7) “I note that both Dr Lee and Dr Wallace assessed scarring. I have not assessed scarring and only assessed the body parts referred”;
(m) on 11 October 2023, the COD was issued in accordance with the MAC. It orders the respondent to pay the applicant, as lump sum compensation under s 66 of the 1987 Act, the amount of $51,780 in respect of 20% WPI resulting from the injury on 19 August 2018;
(n) on 30 July 2024, the applicant made application to the Commission for reconsideration of the COD and the MAC however it was not in proper form and did not proceed, and
(o) on 22 October 2024, the applicant made the present application to the Commission.
EVIDENCE AND SUBMISSIONS
I have considered the evidence and the written submissions lodged on behalf of the applicant and the respondent in accordance with the Directions issued by me on 19 November 2024.
In summary, the applicant submitted that that the application for reconsideration should be granted because:
(a) it is necessary to correct an obvious error in the MAC which was that TEMSKI/scarring was not included in the assessment;
(b) the applicant is significantly disadvantaged by the assessment;
(c) the applicant relies on decisions of Tough v Protech Personnel Pty Ltd [2024] NSWPIC 454 (27 March 2024) (Tough) and Skates v Hill Industries Ltd [2020] NSWCA 837 (30 June 2020) (Skates), and
(d) as all the independent medical experts referred to the scarring and Dr Lee’s report was served with the claim for permanent impairment compensation, it was through an “error” that no assessment of WPI was made in respect of scarring.
In summary, the respondent submitted that the application for reconsideration should be refused because:
(a) the error arose by virtue of a mistake or oversight by the applicant’s lawyers, in particular, failure to include the skin as a body part in the ARD and then failure to identify the skin as being omitted from the terms of referral to a Medical Assessor on two occasions, being 6 October 2022 and 19 July 2023. Mistake or oversight by a legal advisor should not give rise to a ground for reconsideration;
(b) the issue of reconsideration was not raised until 30 July 2024, some 10 months after the COD was issued on 11 October 2023 and it was not until 22 October 2024 that an application for reconsideration was submitted in proper form. No acceptable explanation has been given for the delay. The delay and the principle of finality of litigation, fairness and delay is a significant factor mitigating against the exercise of the Commission’s discretion;
(c) the present case is not analogous to the position in Tough, because in Tough no Certificate of Determination was issued and the worker’s legal representative promptly submitted an application for reconsideration;
(d) in this case, the applicant effectively concedes that the failure to plead and include the skin as a body part was an error;
(e) that error was evidence not just in the ARD, but also when the referrals were issued, and when the MAC and the COD were issued;
(f) it would be contrary to authority and would constitute error for the Commission to exercise its discretion for reconsideration, relying on Hurst v Goodyear Tyre & Rubber Co (Australia) Limited [1953] 27 WCR (NSW) 29 (Hurst), at ]30], and
(g) in the present case, the delay is a significant period exceeding 9.5 months from when the COD was issued on 11 October 2023 and the initial application for reconsideration (not in proper form) was filed on 30 July 2024, with a further delay until 22 October 2024 when the present application for reconsideration was filed.
LEGISLATION
Section 57 of the PIC Act states:
“57 Reconsideration of decisions of Commission
(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a)alter the decision to correct the error, or
(b)direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a)issue a replacement certificate with the error corrected, or
(b)direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a)there is an obvious clerical or typographical error in the text of the notice or statement, or
(b)there is an error arising from an accidental slip or omission, or
(c)there is a defect of form, or
(d)there is an inconsistency between the stated decision and the stated reasons.”
Section 3 of the PIC Act provides as follows, in part:
“3 Objects of Act
The objects of this Act are as follows—
…
(c)to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d)to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e) to promote public confidence in the decision-making of the Commission and in the conduct of its members,
…”.
Section 4 of the PIC Act directs, amongst other things:
“4 Interpretation and application of Act by reference to objects
(1) …
(2) In the exercise of a discretion conferred by a provision of this Act, the Commission rules or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or the provision concerned.”
Section 329 of the 1998 Act provides:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred a gain on one or more further occasions for assessment in accordance with this Part, but only by—
(a) the President as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
PRINCIPLES GOVERNING RECONSIDERATION APPLICATIONS
Principles regarding the exercise of the reconsideration power under the now repealed s 350(3) of the 1998 Act were set out in Howell v Stringvale Pty Ltd[1] and Samuel v Sebel Furniture Limited (Samuel)[2] (at [58]) and are useful in considering the operation of s 57(1) of the PIC Act which is in similar terms. The following principles were stated in Samuel:[3]
[1] [2005] NSWWCC 64, (Howell).
[2][2] [2006] NSWWCCPD 141.
[3] Noted by Acting Deputy President Geoffrey Parker SC in Fairfield City Council v McCall (No 2) [2022] NSWPICPD 29 at [24]-[26].
“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).”[4]
(citations omitted)
[4] Samuel, [58].
Now repealed s 354(3) of the 1998 Act (‘Procedure before Commission’), referred to above in Samuel, stated that “[t]he Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. It was similar to the ‘Guiding Principle to be applied to practice and procedure’ outlined in s 42 of Part 5, Division 5.1 of the PIC Act.
I accept that I have a wide power to reconsider under s 57(1) of the PIC Act although that power must be exercised fairly with due regard to relevant considerations. [5] The discretion to reconsider provided by s 57 of the PIC Act is to be exercised for reasons and with a view to advancing the objects of the PIC Act.
[5] Samuel, [58].
REASONS
It is clear from Howell and Samuel, that the principle that litigation should not proceed indefinitely must be balanced with the injustice that might arise if a decision is not revisited.
In the present case, the claim and the dispute between the parties clearly included scarring. They referred to the report of Dr Lee which included an assessment of WPI in respect of scarring. Dr Wallace’s report addressed scarring and stated an assessment of 0% for scarring.
Although the ARD did not specifically refer to scarring in relation to the section which dealt with the nature of the claim for permanent impairment compensation, it did describe a consequential condition of scarring.
In the circumstances, I am satisfied that TEMSKI/scarring was not included in the referral to a Medical Assessor due to an error.
Mistake or inadvertence on the part of legal advisers is said to be an insufficient ground for reconsideration: Hurst, Samuel. In this matter, the applicant’s lawyers apparently overlooked the error in the applicant’s pleadings and the referral. The insurer and its lawyers also apparently overlooked the error and failed to act. No explanation for this error by either party has been provided.
I acknowledge that there is a delay of many months since the issue of the MAC and the COD. The applicant did take steps to obtain reconsideration of the MAC and the COD some time prior to the present proceedings but that application was not in the correct form. However, in doing so, the applicant did put the respondent and the insurer on notice of the error and its intention to seek reconsideration of the MAC and the COD.
An assessment of total WPI which includes an assessment of WPI for TEMSKI/scarring is important to the applicant. A claim for scarring was always part of the applicant’s claim and the dispute. The applicant will suffer injustice if the reconsideration is not permitted because the applicant will be deprived of assessment of TEMSKI/scarring. It was only through error that the MAC did not include an assessment of that body part.
The respondent has not provided specific details of any prejudice it alleges it would suffer.
The present matter does not involve new evidence. As all parties were aware of the report of Dr Lee from the time that the claim was made.
Having regard to all the circumstances of this matter, I consider that the respondent would suffer little prejudice if the reconsideration is permitted because it has rights of appeal against the new MAC.
Having regard to the decisions of Principal Member Capel in Tough and of the Court of Appeal in Skates, I consider that it would be appropriate for the MAC to be reconsidered so that there could be an assessment of WPI in respect of TEMSKI/scarring.
For all the reasons set out above, I consider that it is appropriate to exercise discretion under s 57(1) of the PIC Act to rescind the and for reconsideration of the MAC in accordance with ss 329(1) and 329(1A) of the 1998 Act.
Accordingly, the application is granted.
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