Grasso v The Trustee for the Venton Group Trust - [2024] NSWPIC 718

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 The Certificate of Determination issued on 11 October 2023 is rescinded. 3.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…

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: [2024] NSWPIC 718
Decision Date: 20 December 2024

CaseChat Overview and Summary

In the matter of Grasso v The Trustee for the Venton Group Trust, the applicant, Grasso, sought reconsideration of a decision made by the Personal Injury Commission (PIC) under the Personal Injury Commission Act 2020 (PIC Act). The dispute centred on the validity and scope of the reconsideration power granted to the PIC under section 57 of the PIC Act, and whether the principles set out in Samuel v Sebel Furniture Limited should apply to such reconsideration applications.

The court had to determine whether the PIC's discretion to reconsider its previous decisions under section 57(1) of the PIC Act should be exercised in light of the principles outlined in Samuel v Sebel Furniture Limited, particularly whether reconsideration was warranted given the nature of the new evidence presented. Additionally, the court examined whether the principles in Samuel, which were applied in the context of reconsideration under the repealed section 350(3) of the Workers Compensation Act 1998 (1998 Act), were applicable to the new statutory framework under the PIC Act.

The court found that the principles outlined in Samuel v Sebel Furniture Limited were indeed applicable to the reconsideration power under section 57(1) of the PIC Act. The court emphasised that the PIC has a broad discretion to reconsider its previous decisions, but this discretion must be exercised fairly and with due regard to relevant considerations, including the reason for any delay in bringing the application and the public interest in litigation not proceeding indefinitely. The court also noted that reconsideration may be allowed if new evidence, which could not have been reasonably obtained at the first arbitration, is presented and would likely lead to a different outcome if it had been considered initially. The court concluded that the principles in Samuel provided a useful framework for assessing the PIC's reconsideration applications.

The court granted the application for reconsideration, allowing the PIC to reassess the matter in light of the new evidence presented by the applicant. The decision underscored the importance of the PIC exercising its reconsideration powers judiciously, in line with established legal principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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’), and9.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].