Jabihullah v Haq Transport Pty Ltd
[2024] NSWPIC 37
•30 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jabihullah v HAQ Transport Pty Ltd [2024] NSWPIC 37 |
| APPLICANT: | Jabihullah Jabihullah |
| RESPONDENT: | HAQ Transport Pty Limited |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 30 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for inter alia cervical spine injury; claim for lump sum compensation pursuant to section 66; applicant already assessed by Medical Assessor, and Medical Assessment Certificate (MAC) issued; Certificate of Determination (COD) subsequently issued; applicant applying for COD to be reconsidered and rescinded; applicant undertaken cervical spine surgery since issuing of MAC; consideration of applicant’s statements and medical evidence obtained both prior to and subsequent to the issuing of the MAC; consideration of whether the Commission should exercise its discretion (pursuant to section 57(1) of the Personal Injury Commission Act 2020 (the 2020 Act)) to reconsider the COD , if so, what orders should the Commission make; Samuel v Sebel Furniture Limited, Valesini v Star Track Express Pty Limited, Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & Ors, Bessant v Newcastle Caravan City, Railcorp NSW v Registrar of the WCC of NSW considered; Held – in the exercise of its discretion pursuant to section 57(1) of the 2020 Act, the Commission reconsiders the COD and rescinds it; applicant’s claim remitted to the President in order for him to determine whether the claim is to be referred for further assessment as an alternative to an appeal against the MAC, as provided for by section 329 of the Workplace Injury Management and Workers Compensation Act 1998. |
| DETERMINATIONS MADE: | The Commission determines: 1. In the exercise of its discretion pursuant to s 57(1) of the Personal Injury Commission Act 2020, the Personal Injury Commission (Commission) reconsiders the Certificate of Determination issued by the Workers Compensation Commission in this matter on The Commission orders: 1. The Certificate of Determination of the Workers Compensation Commission in this matter dated 5 November 2019 is rescinded. 2. The applicant’s claim is remitted to the President in order for him to determine whether the claim is to be referred for further assessment as an alternative to an appeal against the Medical Assessment Certificate of Assessor Meakin dated 1 October 2019, as provided for by s 329 of the Workplace Injury Management and Workers Compensation Act 1998. |
STATEMENT OF REASONS
BACKGROUND
Jabihullah Jabihullah (the applicant) is 40-years-old and commenced employment in 2016, delivering boxes of furniture for HAQ Transport Pty Limited (the respondent).
The applicant injured his neck and upper back while delivering a box of furniture in the Newcastle area, on 19 August 2016. The respondent has accepted that the injury arose out of or in the course of his employment with it, so as to entitle him to compensation in accordance with the Workers Compensation Act 1987 (the 1987 Act). The applicant has not worked since 19 August 2016, and he received weekly benefits compensation from the respondent until 12 September 2023. The respondent has also met his medical and treatment expenses pursuant to s 60 of the 1987 Act to date, including the expenses related to neck surgery that he underwent on 2 February 2022.
By letter dated 10 April 2019, the applicant (through his then solicitors) made a claim for lump sum compensation pursuant to s 66 of the 1987 Act. He alleged that as a result of his injury, he had sustained 15% whole person impairment. He relied upon an assessment from Dr Dias in this regard.
The respondent replied to the applicant’s claim pursuant to s 66 of the 1987 Act on
24 June 2019, by issuing a notice in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). In the notice, it disputed liability for the claim, alleging that the applicant suffered from no whole person impairment as a result of his injury. It relied upon an assessment from Dr Harrington in this regard.As a result, the applicant lodged an Application to Resolve a Dispute (ARD) with the Workers Compensation Commission (WCC) on 14 August 2019, requesting that the WCC determine his claim pursuant to s 66 of the 1987 Act.
The respondent’s Reply (Reply) was lodged with the WCC on 4 September 2019. It did not raise any issues other than the correct assessment of the applicant’s whole person impairment as a result of his injury. The WCC therefore referred that dispute directly to its Medical Assessor, Assessor Meakin. The referral was made on 10 September 2019, and it requested that the Medical Assessor assess the applicant’s level of whole person impairment as a result of his injury, in relation to his cervical spine, his thoracic spine, and his right upper extremity (shoulder).
A Medical Assessment Certificate (the MAC) was issued by the WCC on 1 October 2019, assessing the level of the applicant’s whole person impairment at 8%. The findings in that certificate were not appealed by either party, and as a result, those findings became conclusively presumed to be correct, in accordance with s 326(1) of the 1998 Act. As the assessed level of the applicant’s whole person impairment was not greater than 10%, he was not entitled to compensation in accordance with s 66(1) of the 1987 Act. The WCC issued a Certificate of Determination accordingly on 5 November 2019 (the COD).
The applicant now seeks that the Personal Injury Commission (Commission) reconsider and then rescind the COD. The Commission has assumed the jurisdiction of the WCC and its power to reconsider the COD is contained within s 57 of the Personal Injury Commission Act 2020 (the 2020 Act). Schedule 1 to the 2020 Act allows the Commission to reconsider decisions of the WCC.
The applicant lodged his Application for Reconsideration (AR) with the Commission on
11 September 2023, and the respondent provided the Commission with submissions in response to the AR on 29 September 2023.
ISSUE FOR DETERMINATION
The parties agree that the sole issue in dispute is as follows:
(a) should the Commission exercise its discretion to reconsider the COD - if so, what orders should the Commission make.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute was listed before the Commission for a preliminary conference on 15 November 2023. On that occasion, Mr Pena appeared for the applicant and Mr Orr appeared for the respondent. The applicant was also present.
I admitted into evidence the documents attached to the AR, and I directed a timetable for the lodging and admission of further evidence and submissions. In this regard, the applicant lodged further evidence and submissions on 28 November 2023, but the respondent has not lodged any further evidence or submissions. In accordance with the direction made on
15 November 2023, I admit into evidence the documents lodged by the applicant on
28 November 2023.The final direction that I made on 15 November 2023 was that I would determine the AR ‘on the papers’ after 12 January 2024.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and its attached documents;
(b) the Reply and its attached documents;
(c) the MAC;
(d) the COD;
(e) the AR and its attached documents, and
(f) the applicant’s Application to Admit Late Documents lodged with the Commission on 28 November 2023 (AALD) and its attached documents.
Oral evidence
There was no oral evidence given by the applicant or any other witness at the arbitration hearing.
Consideration of the evidence
I have considered the entirety of the evidence before me. It does not seem to be overly contentious. I will consider the aspects of the evidence which I believe to be significant, and will only consider other aspects of it if specifically directed to those aspects during the parties’ submissions.
There are two statements from the applicant in evidence. The first statement is dated
10 October 2018 and found at page 1 of the ARD, and the second statement is dated
27 November 2023 and found at page 2 of the AALD.In the applicant’s first statement, he deals with:
(a) migrating to Australia from Myanmar in 2012;
(b) obtaining employment as a delivery person with the respondent in 2016;
(c) the nature of that employment;
(d) the circumstances of his injury on 19 August 2016;
(e) the nature and extent of his disabilities as a result of that injury;
(f) his treatment for the injury, and
(g) not notifying the respondent of the injury until September 2016 - he was then advised to make a workers compensation claim for the injury, which he had not done previously “as I was not aware of my rights under the act”.
He says that he had been treated by two general practitioners (Drs Eftekhar and Saeed) as well as a specialist (Dr McKechnie), who had suggested that he might need neck surgery.
The applicant’s second statement provides some more details regarding his treatment for his injury. He says that he followed the advice of his doctors. He initially underwent radiology and physiotherapy treatment, as ordered by Drs Eftekhar and Saeed. He was then referred to Dr McKechnie (neurosurgeon) around August 2017. He underwent radiology and was referred for an injection to his neck. He says:
“Dr McKechnie spoke about to me about surgery to my neck possibly being a final option in the future if the injection did not help.”
In December 2018, he was referred to a different neurosurgeon, Dr Al-Khawaja. He says that his neck condition deteriorated, and he eventually underwent neck surgery in the form of a C6/7 anterior cervical discectomy and fusion, under Dr Al-Khawaja on 2 February 2022. He had to approach the Commission for an order that the respondent pay the costs associated with that surgery.
The applicant also says in his second statement that:
(a) he did not go to school in Myanmar;
(b) he in fact came to Australia as a refugee;
(c) he has required the assistance of an interpreter in discussions concerning his workers compensation claim for his injury, and
(d) at the time of the MAC:
“I had solicitors at the time because I had no previous experience with the workers compensation system. I was not familiar with the workers compensation system. I did not understand the one assessment principle at the time or the significance of a Certificate of Determination at the time.”
In relation to evidence from treating specialists, dated prior to the MAC, there is evidence in three reports from Dr McKechnie and one report from Dr Dalton.
In his first report dated 29 May 2017 (at page 41 of the ARD), Dr McKechnie diagnoses the applicant with a moderate to large left paracentral and posterolateral C6/7 disc protrusion deforming the left side of the spinal cord and causing left C7 nerve root compression. He opines:
“Although the disc protrusion in the neck is large, he does not appear to have any left C7 pain at this stage. There are no obvious neurological deficits and I would currently recommend he continue with physiotherapy. I have also commenced him on a trial of Lyrica. Surgery may be indicated in the future however.”
In Dr McKechnie’s second report following a consultation on 7 August 2017 (at page 53 of the ARD), the doctor says that he then discussed conservative and surgical treatment with the applicant. He suggests that the applicant cease physiotherapy treatment and Lyrica treatment, as neither of those treatments has led to any improvement in his condition. He says that the applicant could commence a restricted exercise program.
In Dr McKechnie’s third report dated 18 September 2017 (at page 47 of the ARD), the doctor notes that the applicant does not wish to commence an exercise program. He refers the applicant for a CT guided left C7 perineural cortisone injection, opining that surgery would be the applicant’s “final option if the injection was unsuccessful”.
In Dr Dalton’s report dated 7 August 2017 (at page 49 of the ARD), the doctor expresses concerns regarding inconsistencies in the applicant’s presentation, and regarding his lack of response to treatment options so far. He recommends an exercise program and opines:
“there are clearly no indications for surgery and I would not recommend any intervention or therapy such as CT-guided corticosteroid injections given the discrepancy between his complaints, clinical findings on examination and the radiology.”
In relation to evidence from treating specialists, dated subsequent to the MAC, there is only one report from Dr Al-Khawaja in evidence (at page 2 of the AR), which is his surgery report dated 2 February 2022, confirming the surgery then undertaken by the applicant of a C6/7 anterior cervical discectomy and fusion.
The applicant initially relied upon medico-legal opinions from Dr Dias in the doctor’s report dated 23 January 2019 (at page 14 of the ARD).
The doctor notes that the applicant has continued to experience symptoms of pain, stiffness and discomfort affecting his neck, thoracic spine, and right shoulder since his injury on
19 August 2016. He had been treated conservatively with physiotherapy, massage treatment, medication and home exercises. He had not had any injections or surgery, and had not undertaken hydrotherapy or an exercise program. He was currently not under the care of any treating specialist, but only consulted with his general practitioner fortnightly and took daily medication.The doctor opines that the applicant’s symptoms and disabilities are likely to continue “for an indefinite period of time into the foreseeable future”. He was totally incapacitated for any form of suitable employment.
The doctor recognises that if the applicant’s condition deteriorated and his radicular symptoms became more localised and persistent, he could over the next three-five years require neck surgery. Nevertheless, the doctor was willing to accept that the applicant’s condition had stabilised and reached maximum medical improvement, opining:
“Given Mr Jabihullah has suffered with chronic symptomatology in relation to his various injured regions for the past 29 months and given that it is unlikely that his clinical conditions are significantly altered in the next 12 months with or without medical treatment (excluding surgical treatment), I can objectively conclude that Mr Jabihullah’s compensable physical injuries have effectively stabilised and he has reached maximum medical improvement from an impairment assessment perspective.”
As a result, the doctor assesses the applicant as having 6% whole person impairment in relation to his cervical spine, 5% whole person impairment in relation to his thoracic spine, and 5% whole person impairment in relation to his right shoulder, leading to a combined assessment of 15%. In arriving at his assessment in relation to the cervical spine, the doctor places the applicant in DRE category II pursuant to the relevant SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 which modify the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (the impairment guidelines).The applicant now relies upon an assessment from Dr Lee in relation to the degree of his whole person impairment as a result of his 19 August 2016 injury. The doctor consulted with the applicant after he had undergone his 2 February 2022 neck surgery, and the doctor has provided two reports dated 8 December 2022 (at page 4 of the AR) and 5 February 2023 (at page 10 of the AR).
In the 8 December 2022 report, the doctor summarises:
“Mr Jabihullah has pre-existing C6/7 injury in his cervical spine. The injury at work caused further prolapse which eventually he ended up requiring a discectomy and fusion.”
The doctor places the applicant’s cervical spine impairment in DRE category IV pursuant to the impairment guidelines. He assesses the entirety of the applicant’s cervical whole person impairment (after making a deduction for the applicant’s pre-existing condition in his cervical spine) at 23%.
In the 5 February 2023 report, the doctor combines the finding in the MAC that the applicant has 1% right upper extremity impairment, with his assessment of 23% cervical spine impairment, in order to calculate a total whole person impairment of 24% in relation to the applicant.
The respondent relies upon two reports from Dr Harrington.
The first report is dated 20 May 2019 and was uploaded as a supporting document to the Reply.
The doctor does not find that the applicant was suffering from any whole person impairment at all. He notes the applicant’s lack of treatment, the absence of neurological findings, and his inability to identify any acute pathology in the applicant’s radiology. He opines that the applicant suffered a soft tissue injury on 19 August 2016, aggravating pre-existing pathology at C6/7. He also opines:
“Dr Dias has recorded asymmetric loss of movement in the cervical spine however I observed Mr Jabihullah to move his neck freely and without hesitation when conversing with his interpreter therefore I do not believe clinical examination fits the DRE category provided by Dr Dias.”
In Dr Harrington’s second report dated 31 March 2023 (at page 12 of the AR), the doctor repeats his opinions that the applicant’s work related injury had resolved, and that he did not support the need for a C6/7 spinal fusion. It is to be noted in this regard that the doctor refers to providing supplementary reports to the respondent in June 2019 and September 2021. However, these reports are not in evidence before the Commission.
The doctor does however accept that his “previous reports were apparently dismissed” and that “liability was and remains accepted for injuries to his cervical spine”. He concludes:
“Although I don’t agree with the work injury being the substantial contributing factor in the need for surgery, it has been accepted under compensation. Therefore his current situation, which hasn’t changed since his operation, would be related to the accepted injury.”
The doctor notes that since he last consulted with the applicant, the applicant had undergone an anterior discectomy and fusion at C6/7, on 2 February 2022. He advises that:
“The anterior cervical fusion has only increased his whole person impairment, rather than improving his quality of life…For the accepted work related injury to the cervical spine, he has DRE IV at 25% WPI for the single level fusion. He has 1% WPI for adjustment of daily living. He does not have radiculopathy or any modifiers following surgery…There would be 1% WPI for the thickened scar on the right side of his neck …This equates to 27% WPI for the cervical spine.”
The doctor accepts that the applicant’s prognosis is poor, and that he is unfit for his pre-injury duties.
Finally, the MAC requires consideration. It was issued on 1 October 2019 following an assessment by Assessor Meakin.
The applicant’s treatment history recorded in the MAC consisted of rest, physiotherapy, the use of medication, general practitioner consultations, and consultations with Dr McKechnie. There had been no injections or surgical interventions.
Under ‘present symptoms’, the MAC records significant neck discomfort. In relation to examination findings, the MAC records demonstrated asymmetrical loss of range of motion of the cervical spine, flexion restrictions, and guarding on rotation.
The MAC proceeds to assess the applicant’s whole person impairment, categorically stating that all relevant body parts/systems had stabilised/reached maximum medical improvement. The impairment in the applicant’s cervical spine is placed in DRE category II in accordance with the impairment guidelines “by virtue of the asymmetrical active loss of range of motion and evidence of muscle guarding”.
Applicant’s submissions
The applicant’s submissions have been reduced to writing and form part of the Commission’s record, being attached to the AR. I do not intend to repeat them in detail.
The applicant requests that the Commission reconsider the COD and rescind it, as his cervical spine condition has deteriorated since it was issued, resulting in him undergoing neck surgery on 2 February 2022. There is now as a result significant additional relevant information which was not available when the MAC was issued.
The applicant notes that the Commission has a “wide and far reaching discretion” to reconsider its previous decisions. He relies upon the principles outlined in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel) in relation to how the discretion should be exercised, and submits:
(a) the reconsideration application is not made on the basis of previous oversight, error or mistake by the applicant or his solicitors;
(b) the applicant has not overly delayed in bringing the reconsideration application – he has acted promptly since he underwent his neck surgery on 2 February 2022;
(c) the applicant is not attempting to introduce ‘more evidence’, but rather ‘fresh evidence’ supporting the deterioration of his neck condition, which was not available when the COD was issued as at that time, his condition had not deteriorated to the extent that he required surgery;
(d) “it is necessary to balance the public interest that litigation should not proceed indefinitely with the need to do justice between the parties” - the applicant’s cervical condition had significantly deteriorated since the COD and he therefore submits that “the substantial merits of the case ought allow the applicant to have the Certificate of Determination rescinded because of the intervening C6/7 Anterior Cervical Discectomy and Fusion arising from the significant deterioration in the condition of the applicant’s cervical spine”, and
(e) the ‘fresh’ evidence relied upon by the applicant was not in existence when the COD was issued, and could not have been obtained with reasonable diligence prior to the issuing of the MAC.
The applicant then quotes from the recent Commission decision of Member Burge in Valesini v Star Track Express Pty Limited [2023] NSWPIC 271 (Valesini), which he describes as a “not at all dissimilar” reconsideration application to that being brought by him.
In relation to the orders sought by the applicant, aside from the reconsideration and rescission of the COD, he also seeks a referral to the President to determine:
“(a) whether at least one of the grounds for appeal specified in section 327(a) and (b) of the 1998 Act has been made out; and, if so
(b) whether the matter can be referred for a further assessment of permanent impairment as an alternative to an appeal as provided for by section 329(1) of the 1998 Act.”
The applicant submits that it would be appropriate for Assessor Meakin to conduct any further assessment, considering that he conducted the assessment which led to the MAC.
The applicant then makes submissions with respect to s 327 of the 1998 Act. He submits that, when the permanent impairment assessments of Drs Lee and Harrington following his neck surgery on 2 February 2022 are considered, he would clearly satisfy the test of deterioration in s 327(3)(a) of the 1998 Act, in accordance with Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149 (Riverina Wines).
He also submits that, in accordance with s 327(3)(b) of the 1998 Act, he now possesses ‘fresh evidence’ supporting the proposition that his neck condition has significantly deteriorated since the MAC. That evidence only came into existence following his neck surgery on 2 February 2022, and was therefore “not available to, and could not reasonably have been obtained by” him before the MAC assessment.
Respondent’s submissions
The respondent’s submissions have been reduced to writing and form part of the Commission’s record, being lodged (and dated) on 29 September 2023. I do not intend to repeat them in detail.
The respondent essentially relies upon s 322A of the 1998 Act, which only allows for there to be one Medical Assessment of an injured worker. The respondent submits that the further assessment requested by the applicant is therefore precluded, specifically due to sub-ss 2 and 3 of s 322A.
The purpose of s 322A of the 1998 Act “is to impart a degree of finality to litigation”. Its intention and purpose would be circumvented if the applicant was able to proceed further with his claim. He had legal representation at the time when the MAC and when the COD were issued, and he would have therefore been aware of the effects of s 322A.
The respondent also notes that the applicant took no steps to appeal the MAC before the COD was issued, despite that he would have been aware of s 327(7) of the 1998 Act, which prevents an appeal from a MAC once a COD has been issued.
The respondent concludes:
“There is no dispute that the applicant underwent a C6/7 anterior cervical discectomy and fusion surgery on 2 February 2022. The respondent nevertheless submits that the fact that that surgery caused a deterioration in the applicant’s WPI is not necessarily sufficient to outweigh the public interest in the finality of litigation. This is particularly so in circumstances where the applicant was aware of the final nature of his degree of WPI impairment at the time of the 2019 proceedings.”
Applicant’s submissions in reply
These submissions have been reduced to writing and form part of the Commission’s record, being attached to the AALD. I do not intend to repeat them in detail.
In reply, the applicant submits:
(a) he was not aware of the effects of s 322A of the 1998 Act - see his statement evidence (referred to at paragraph 23 above) - the applicant also quotes from the recent Commission decision of Member Batchelor in Bessant v Newcastle Caravan City [2023] NSWPIC 167 (Bessant), where it was found that even an applicant’s knowledge of the effects of ss 322A and 327(7) of the 1998 Act would not affect the Commission’s reconsideration discretion, and
(b) according to Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 (Railcorp), the Commission needs to balance the policy requirement of finality of litigation with the obligation to rectify any clear-cut injustice – the applicant then refers to the cessation of his weekly benefits compensation on 12 September 2023 due to the combined operation of the MAC and s 39 of the 1987 Act (which will also lead to the eventual cessation of his entitlement to claim medical expenses in accordance with s 60 of the 1987 Act) as clear-cut injustice to him, considering that his cervical spine condition has changed quite significantly since the issuing of the COD (following his neck surgery on 2 February 2022 and the subsequent increase in his whole person impairment levels certified by Drs Lee and Harrington) - the applicant submits that the balance of the interests of justice lie in his favour and that “the obligation to rectify the obvious ‘clear-cut injustice’ [emphasis in original] outweighs the policy requirements of finality of litigation, particularly against the background of the beneficial nature of the workers compensation legislation”.
FINDINGS AND REASONS
Should the Commission exercise its discretion to reconsider the COD - if so, what orders should the Commission make
The power of the Commission to reconsider a COD is found in s 57(1) of the 2020 Act, which states as follows:
“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.”
The Commission is certainly given a wide discretion in this regard, and it is to be exercised in accordance with the Commission’s duties under ss 42 and 43 of the 2020 Act. Section 42(1) states as follows:
“The ‘guiding principle’ for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Section 43(3) then states as follows:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In Samuel, Roche ADP (as he then was) summarised [at 58] how the WCC was to exercise the reconsideration discretion given to it by s 350(3) of the 1998 Act (which applied to the WCC in almost identical terms to the terms which apply to the Commission pursuant to s 57 of the 2020 Act), as follows:
“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).”
Roche ADP also stated [at 55] in Samuel:
“In considering the scope and operation of section 350(3) I think it is appropriate to keep in mind the words of Justice Mahoney in Switzerland Insurance Workers’ Compensation (NSW) Ltd v Burley, Court of Appeal, No. 40408, 5 December 1996, unreported, at 18:
‘Procedure in the Compensation Court is, in general, flexible and free from basic rigidities. This is as it should be: the Court is a specialist Court whose function is to deal with a large number of claims as expeditiously as may be. Its decisions are, in my opinion, to be given according to the law but with a regard to justice and merits appropriate to the nature of the social remedy which the legislation provides. Subject to observance of the specific statutory requirements, it should, in my opinion, exercise its jurisdiction in a beneficial manner and without undue emphasis upon technicalities’.”
The approach of Roche ADP in Samuel was referred to by Harrison AsJ in Railcorp, where [at 56] it was stated:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
Applying the principles in Samuel and Railcorp, I consider that there would be clear-cut injustice to the applicant if his reconsideration application was not to be successful. His whole person impairment would be set at 8%, in circumstances where (following his surgery on 2 February 2022), both Drs Lee and Harrington agree that it is greater than 20%. The effect to the applicant in this regard would be wide-ranging in that:
(a) he would be prevented from claiming weekly benefits compensation after 12 September 2023 due to the operation of s 39 of the 1987 Act, as a result of his whole person impairment being assessed at 20% or less;
(b) he would be prevented from claiming his treatment expenses in accordance with s 60 of the 1987 Act after 12 September 2025 due to the operation of s 59A(1) of the 1987 Act, as a result of his whole person impairment be assessed at 10% or less, and
(c) he would be prevented from claiming any lump sum compensation pursuant to s 66 of the 1987 Act.
On the whole of the medical evidence, there has been a clear and agreed deterioration in his cervical spine condition since the MAC. If it were not for the COD and the MAC, the above compensation entitlements would still be open to him, as they are to other workers in his position (and with his degree of whole person impairment) who are not subject to a previous COD and MAC. In my opinion, this clear-cut injustice requires remedial action in order for the Commission to fulfil its duties in accordance with ss 42 and 43 of the 2020 Act.
I accept that the applicant would not have considered the possible future deterioration in his cervical spine condition when he considered the findings in the MAC. While the possibility of neck surgery had been raised by Drs McKechnie and Dias, it had been specifically discounted by Drs Dalton and Harrington. Further, both Dr Dias and Assessor Meakin were willing to certify the applicant’s neck condition as having stabilised and reached maximum medical improvement. Considering the applicant’s lack of education and command of the English language, it does not seem to me to be unreasonable for him to assume at the time of the MAC that his neck condition had stabilised and would not require operative treatment in the future. I do not believe that the applicant can be criticised for not foreseeing the future deterioration of his neck condition.
I also accept that the applicant was not cognisant of the full legal effect of the MAC findings in relation to his ongoing compensation entitlements, specifically with respect to the operation of s 322A of the 1998 Act. I accept his evidence in this regard (see paragraph 23 above). I also agree with Member Batchelor’s reasoning in Bessant [at 96]:
“In any event, even if the applicant was aware of the ‘one MAC’ provisions in s 322A and s 327(7) of the 1998 Act, I do not think that is a matter adverse to him in seeking the exercise of the discretion vested in the Commission under s 57 of the PIC Act. His situation has changed quite significantly since that time.”
Further, no criticism of the applicant can be made in relation to:
(a) delay – I accept the applicant’s submission at paragraph 52(b) above that there have been no unreasonable delays in the applicant bringing this reconsideration application, considering that he could not bring it (on the basis of deterioration of his cervical spine condition) until he had undergone his neck surgery on 2 February 2022, and until his condition had stabilised following that surgery in order to allow assessments to be made in relation to his whole person impairment;
(b) failing to rely upon the ‘fresh’ evidence that the applicant now relies upon when the ARD was lodged - that evidence was then not available as the applicant had not undergone his neck surgery on 2 February 2022, and
(c) any oversight or mistake by the applicant’s solicitors at the time of the MAC - the grounds now put forward by the applicant for the rescission of the COD (that his cervical spine condition has deteriorated following his 2 February 2022 surgery, which has required him to obtain ‘fresh’ evidence regarding the deterioration) were not available to the applicant when the MAC was issued - this explains the decision of the applicant’s solicitors to not originally seek to appeal the MAC, and I therefore do not believe the submission of the respondent at paragraph 60 above to have any force in the circumstances..
I accept that the applicant’s evidence in his second statement, that the surgery report from Dr Al-Khawaja (see paragraph 29 above), and that Dr Lee’s reports and Dr Harrington’s second report, are ‘fresh’ evidence rather than more or additional evidence, which is one of the circumstances which would allow a reconsideration application per Railcorp. This evidence does much more than add to the previous evidence. It discusses significant further treatment that the applicant has undergone, which has led to a deterioration in his cervical spine condition, and a more than material increase in the level of his whole person impairment. It is new evidence, and in my opinion, it is evidence which has the capacity to found an application for an appeal in relation to the MAC in accordance with s 327(3)(a) and (b) of the 1998 Act.
In its submissions, the respondent largely relies upon s 322A of the 1998 Act, which provides as follows:
“(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of--
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
The respondent submits (see paragraph 58 above) that s 322A of the 1998 Act prevents the applicant from applying for a further assessment of his whole person impairment. This submission would have some force had the applicant instituted further proceedings before the Commission, in relation to the degree of his whole person impairment. However, the applicant is seeking a reconsideration of the COD. If the COD is rescinded and the applicant’s whole person impairment is further assessed, such an assessment would be an assessment in order to determine the original [emphasis added] medical dispute referred to in the ARD. It would be a further assessment that would be requested either pursuant to s 329 of the 1998 Act or as part of an appeal process against the MAC in accordance with s 327 of the 1998 Act.
The respondent then uses s 322A of the 1998 Act as evidence of Parliament’s intention to impart finality to litigation. I certainly accept that where the section applies, litigation in relation to the degree of a worker’s whole person impairment is finalised. However, the section does not prevent the applicant’s reconsideration application. I do not believe that the purpose of the section adds any additional weight to the weight that I am required to give when considering the public interest in the finality of litigation, in my determination as to whether to allow this particular applicant’s reconsideration application.
In the circumstances, I find that to exercise my wide power of reconsideration in relation to the COD, a consideration of all nine of the factors referred to in Samuel leads me to the conclusion that I should exercise that discretion in favour of the applicant. The applicant has been able to satisfy me that there is not one of those factors that would prevent me from exercising the discretion.
Specifically, the ‘substantial merits of the case’ have changed following the deterioration in the applicant’s cervical spine condition and the surgery that he underwent on
2 February 2022. Section 43(3) of the 2020 Act requires me to act according to the ‘substantial merits of the case’, as well as equity and good conscience.It is true that there is a public interest in the finality of litigation, but that public interest needs to be weighed against the public interest in ensuring there is no clear-cut injustice to an injured worker. Having regard to the substantial deterioration in the applicant’s cervical spine condition since the COD (as evidenced in the recent whole person impairment assessments of both Drs Lee and Harrington), together with the drastic effects upon the applicant’s compensation entitlements should the COD not be rescinded, as well as the lack of other factors (see paragraphs 71-73 above) which would otherwise count against me exercising my discretion in favour of the applicant, I believe that on balance the clear-cut injustice that the applicant would be subjected to should I not rescind the COD outweighs the public interest in the finality of litigation, having regard to the specific circumstances of the applicant’s case.
The COD will be rescinded.
Apart from the order rescinding the COD, I believe it to be preferable and appropriate that I now refer the applicant’s claim to the President of the Commission in accordance with s 329 of the 1998 Act. This is what occurred in Valesini and I accept the applicant’s submission (see paragraph 53 above) that that case involved a very similar reconsideration application to the application considered by me.
Section 329 of the 1998 Act reads as follows:
“(1) A matter referred for assessment under this Part may be referred again 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.”
The applicant has already made submissions (see paragraphs 55 and 56 above) regarding the matters which are grounds for a MAC appeal within s 327(3) of the 1998 Act, for the President to consider when deciding if he would refer the applicant’s claim for further assessment as an alternative to an appeal. Presumably, if the President did not decide to order the further assessment, the applicant would consider lodging such an appeal against the MAC in accordance with s 327.
The applicant has requested this referral to the President (see paragraph 54 above) and the respondent has made no submissions regarding what further orders should be made if the applicant’s reconsideration application was successful.
SUMMARY
I therefore exercise my discretion in accordance with s 57(1) of the 2020 Act to reconsider and rescind the COD.
I also remit the applicant’s claim to the President in order for him to determine whether the claim is to be referred for further assessment as an alternative to an appeal against the MAC, as provided for by s 329 of the 1998 Act.
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