Jaiswal v Programmed Skilled Workforce Ltd - [2025] NSWPIC 60

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jaiswal v Programmed Skilled Workforce Ltd [2025] NSWPIC 60
APPLICANT:	Tushar Jaiswal
RESPONDENT:	Programmed Skilled Workforce
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	20 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); application for reconsideration pursuant to section 57 of the PIC Act and section 329 of the 1998 Act; worker’s claim for lump sum compensation included scarring (TEMSKI); pleadings restricted to both lower extremities and only these body systems were referred to the Medical Assessor (MA); Certificate of Determination issued consistent with the Medical Assessment Certificate (MAC); dispute as to whether the claim should be referred back to the MA to assess the scarring; Skates v Hills Industries Ltd, Howell v Stringvale Pty Ltd, Schipp v Herfords Pty Ltd, and Samuel v Sebel Furniture Limited discussed and applied; Held – medical dispute that was referred to the Commission always included scarring (TEMSKI) and the referral to the MA did not reflect this; the employer was on notice when IME report served; prejudice to the worker outweighed that of the employer; in the interests of justice between the parties application for reconsideration granted; claim remitted to President for referral back to MA to assess scarring (TEMSKI).
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination dated 12 February 2025 is revoked. 2. The applicant’s application pursuant to s 57 of the Personal Injury Commission Act 2020 for reconsideration in accordance with s 329 of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 3. Page 6 of the Application to Resolve a Dispute will be amended as follows: “Systems Claimed: a. Right lower extremity (ankle). b. Left Lower extremity (knee). c. Scarring (TEMSKI).” 4. I remit this matter to the President for referral back to Medical Assessor Robert Kuru pursuant to s 329 (1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment as follows: Date of injury: 7 April 2022 – personal injury. Body systems / parts: scarring (TEMSKI). 5. The Medical Assessor is directed to provide a further Medical Assessment Certificate that incorporates his assessment of whole person impairment in his Medical Assessment Certificate dated 8 January 2025. 6. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Medical Assessment Certificate dated 8 January 2025, and (d) a copy of this Certificate of Determination. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 29 February 2024, Mr Maithri Panagoda, the solicitor for Tushar Jaiswal (the applicant), served a notice of claim on Persol Australia Holdings Pty Limited (the insurer), the insurer of the applicant’s employer, Programmed Skilled Workforce (the respondent), claiming lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The…

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.

Continue reading Jaiswal v Programmed Skilled Workforce Ltd

Details

AGLC: Jaiswal v Programmed Skilled Workforce Ltd [2025] NSWPIC 60
Case: [2025] NSWPIC 60
Decision Date: 20 February 2025

CaseChat Overview and Summary

In the matter of Jaiswal v Programmed Skilled Workforce Ltd, the dispute involved the assessment of a worker's claim for lump sum compensation, specifically concerning scarring under the relevant workers compensation legislation. The Personal Injury Commission (PIC) was tasked with determining whether the claim should be referred back to the Medical Assessor (MA) to evaluate the scarring, as initially it had not been assessed. The case was heard in the Personal Injury Commission of New South Wales.

The primary legal issue before the court was whether the claim should be referred back to the MA for further assessment of the scarring, considering that the initial referral did not explicitly include scarring (TEMSKI). The court examined the statutory framework under the Workplace Injury Management and Workers Compensation Act 1998 and the Personal Injury Commission Act 2020, particularly sections 329 and 57, which pertain to the referral of matters for further medical assessment. The court also considered previous cases such as Skates v Hills Industries Ltd, Howell v Stringvale Pty Ltd, Schipp v Herfords Pty Ltd, and Samuel v Sebel Furniture Limited to understand the bounds of a Medical Assessor's referral and the implications of including or excluding certain injuries in such referrals.

The court concluded that the medical dispute, as referred to the Commission, had always included scarring, despite the initial referral not explicitly mentioning it. The employer had been on notice when the Independent Medical Examination (IME) report was served, and the worker's potential prejudice outweighed any prejudice to the employer. The court found that it was in the interests of justice between the parties to grant the application for reconsideration. Consequently, the claim was remitted to the President for referral back to the MA to assess the scarring. The court's decision underscored the importance of ensuring that all relevant aspects of a worker's claim are appropriately assessed to achieve a fair resolution.

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 deals with referrals for further assessment by a Medical Assessor. It 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.” I have reviewed the evidence relied upon by the parties, the MAC, COD and the submissions of the parties. I do not propose to summarise this material for the purpose of this determination. I note the respondent neither consents or objects to the applicant’s application. In my view, there is merit in the applicant’s submissions when one has regard to Skates v Hills Industries Ltd,[1] where the Court of Appeal considered whether a Medical Assessor is bound by the terms of a referral.[1] [2021] NSWCA 142, (Skates). In Skates, the worker’s injuries were described in the Application as left wrist, ring finger and scarring. Those injuries were not disputed by the insurer. The lump sum claim in the Application referred to the worker’s left upper extremity, joint ring finger and scarring. The Medical Assessor provided an assessment of 60% whole person impairment because he considered that Mr Skates has an essentially useless left arm as a result of impairments in the shoulder, elbow, fingers and thumb. The wrist was not assessed. The respondent appealed on the grounds that the Medical Assessor had assessed body parts which did not form part of the referral. A medical Appeal Panel (MAP) acknowledged the terms of the referral, revoked the MAC and assessed 7% whole person impairment. Mr Skates sought judicial appeal in the Supreme Court and succeeded on the ground that the Medical Assessor had not assessed the worker’s left wrist but agreed that the MAP was correct to revoke the Medical Assessor assessment because he had gone beyond the terms of the referral. Although the matter was remitted back to the Commission, Mr Skates sought leave to appeal to the Court of Appeal. The Court granted leave to appeal, set aside the Arbitrator’s post MAC COD and remitted the matter back to Commission for a further assessment that would include Mr Skates left wrist. Leeming JA made some important observations as follows:“The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ …...” and“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”[2][2] Skates, [44] and [46].