Jabihullah v Haq Transport Pty Ltd - [2024] NSWPIC 37

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(MAC) issued; Certificate of Determination (COD) subsequently issued; applicant applying for COD to be reconsidered and rescinded; applicant undertaken cervical spine surgery since issuing of MAC; consideration of applicant’s statements and medical evidence obtained both prior to and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 5 November 2019. For the reasons given, the Commission rescinds that Certificate of Determination. 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 The Certificate of Determination of the Workers Compensation Commission in this matter dated 5 November 2019 is rescinded. 2.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,…

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 37
Decision Date: 30 January 2024

CaseChat Overview and Summary

The applicant, Jabihullah, brought a claim against Haq Transport Pty Ltd for a cervical spine injury sustained during his employment. The dispute reached the Workers Compensation Commission of New South Wales, where Jabihullah sought to have a Certificate of Determination (COD) rescinded and reconsidered. The COD was issued after a Medical Assessment Certificate (MAC) had been provided by a Medical Assessor. Jabihullah had undergone cervical spine surgery subsequent to the issuing of the MAC, and he argued that this new medical evidence warranted a reevaluation of his claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.

The legal issues before the court were whether the Commission had the discretion to reconsider the COD, and if so, what orders should be made. The court referred to the Personal Injury Commission Act 2020, particularly section 57(1), which grants the Commission discretion to reconsider a COD. The court also considered relevant precedents, including 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, and Bessant v Newcastle Caravan City. These cases provided guidance on the exercise of discretion and the factors the Commission should consider in determining whether to rescind and reconsider a COD.

After carefully weighing the evidence and the applicable legal principles, the Commission exercised its discretion to reconsider the COD. It found that the new medical evidence, including the surgery undergone by Jabihullah, warranted a reevaluation of his claim. Consequently, the COD was rescinded. The case was remitted to the President to determine whether the claim should be referred for further assessment as an alternative to an appeal against the MAC, in accordance with section 329 of the Workplace Injury Management and Workers Compensation Act 1998. This decision allows for a thorough reassessment of Jabihullah's claim in light of the updated medical circumstances.

Orders