Ibrahim v DHL Express (Aus) Pty Ltd

[2022] NSWPIC 737

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ibrahim v DHL Express (Aus) Pty Ltd [2022] NSWPIC 737
APPLICANT:	Jawdat Ibrahim
RESPONDENT:	DHL Express (Aus) Pty Limited
SENIOR Member:	Elizabeth Beilby
DATE OF DECISION:	22 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Reconsideration application based upon deterioration; Held – application dismissed as no order present to reconsider.
determinations made:	1.     The application for reconsideration is dismissed.

STATEMENT OF REASONS

BACKGROUND

1. The applicant filed proceedings in the former Workers Compensation Commission claiming weekly compensation and medical expenses in respect of a psychological injury.

2. The claim was also amended to include a claim for whole person impairment and as a result it was sent for whole person impairment assessment to Dr Julian Parmegiani. Dr Parmegiani issued a Medical Assessment Certificate dated 20 November 2017 assessing 7% whole person impairment.

3. Following the receipt of the Medical Assessment Certificate the matter was listed in respect of weekly compensation and orders were made in respect of payment of weekly compensation. However, there was no order or Certificate of Determination made concerning the lump sum compensation following the issuing of a Medical Assessment Certificate.

4. The applicant now seeks reconsideration of the Medical Assessment Certificate dated
   20 November 2017 and/or the Certificate of Determination on the basis that there has been a deterioration in the applicant’s condition.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:

   (a)    all documents filed in matter no. 3477/17;

   (b)    submissions from the applicant dated 22 August 2022, 22 November 2022 and 28 November 2022, and

   (c)    submissions from the respondent dated 8 September 2022 and
   14 December 2022.

CONSIDERATION OF ARGUMENT

1. The parties have helpfully provided submissions in support of their positions. The respondent’s position is that the request for reconsideration ought to be rejected as firstly there is insufficient evidence that there has been a deterioration, and secondly that the reconsideration is in effect a new claim and offends s 66(1)(a) of the Workers Compensation Act 1987.

2. The applicant has provided medical evidence, based upon the opinions of Dr Gertler and
   Dr Bisht, which suggests that if the applicant was assessed now then there would be a higher assessment.

3. The difficulty I have in this matter is that there is no order regarding lump sum compensation and as such there is not part of the Certificate of Determination for me to reconsider. It is quite clear that there is no separate Certificate of Determination containing any order being issued after the Medical Assessment Certificate.

4. The position is therefore that there is effectively nothing for me to reconsider.

Possible pathways

1. Section 327 of the Workplace Injury Management and Workers Compensation Act 1998 provides the following:

   “327 APPEAL AGAINST MEDICAL ASSESSMENT

   (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. 

   (2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. 

   (3) The grounds for appeal under this section are any of the following grounds-- 

   (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, 

   (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), 

   (c) the assessment was made on the basis of incorrect criteria, 

   (d) the medical assessment certificate contains a demonstrable error.”

2. The applicant is entitled, in my view, to lodge an appeal of Medical Assessment Certificate on the basis of a deterioration, that is, that the applicant’s deterioration has resulted in an increase in the degree of permanent impairment, that is, above 7%.

3. I note that in respect of appeals such as ones that are mounted under s 327(3)(a) and (b) that there is no time limit imposed on such an application.

4. If the circumstances were different and a Certificate of Determination had been issued regarding lump sum compensation, then a different pathway may be appropriate.

5. If the parties wish to reventilate any of these issues based on my determination, they should seek a listing for a telephone conference at short notice.