Jaiswal v Programmed Skilled Workforce Ltd
[2025] NSWPIC 60
•20 February 2025
| 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 notice of claim did not particularise the extent of the applicant’s claim, but in the attachment Permanent Impairment Claim Form, the body systems affected by the applicant’s injury on 7 April 2022 were identified as “Left knee, left tibial plateau, right calcaneal fracture, scarring”. Such a description does not accord with the AMA5 or the Guidelines.
The applicant relied on a report of Dr Kwong dated 7 September 2023. Dr Kwong assessed 22% whole person impairment in respect of the applicant’s left knee, right ankle and scarring (TEMSKI).
Mr Panagoda filed an Application to Resolve a Dispute (the Application) on
9 September 2024. The claim was particularised on page 6 as 22% whole person impairment in respect of the left lower extremity and right lower extremity. Ther was no claim pleaded in respect of scarring (TEMSKI).The applicant’s claim was referred directly to Medical Assessor Kuru who was requested to assess the degree of impairment as follows:
“Date of Injury: 7 April 2022
Body part/s referred: Left lower extremity
Right lower extremity
Method of assessment: Whole person impairment”
Although the parties were provided with a copy of the referral, neither observed that there was no mention of scarring (TEMSKI).
Medical Assessor Kuru examined the applicant on 15 November 2024 and provided his Medical Assessment Certificate (MAC) on 8 January 2025. He assessed 7% whole person impairment of the left lower extremity and 6% whole person impairment of the right lower extremity for a combined total of 13% whole person impairment.
On 12 February 2025, I issued a Certificate of Determination (COD), ordering the respondent to pay the applicant, as lump sum compensation under s 66 of the 1987 Act, $31,290 in respect of 13% permanent impairment resulting from injury on 7 April 2022.
PROCEDURE BEFORE THE COMMISSION
By letter dated 13 February 2025, Mr Panagoda sought a reconsideration of the referral to the Medical Assessor pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Submissions were attached to the email.
On 19 February 2025, the solicitor for the respondent filed submissions in response.
The correspondence of each party was referred to me on 19 February 2025.
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 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.
ISSUE FOR DETERMINATION
The following issues remain in dispute:
(a) whether the Application should be amended to include scarring (TEMSKI);
(b) whether the referral for assessment be amended to include scarring (TEMSKI), and
(c) whether the applicant’s claim should be remitted to the President for referral back to the Medical Assessor to provide a further assessment of whole person impairment.
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) the Application with attached documents;
(b) Reply with attached documents;
(c) MAC dated 8 January 2025, and
(d) COD dated 12 February 2025.
Legislation
Section 57 of the Personal Injury Commission Act 2020 (the PIC Act) deals with the reconsideration power of the Commission. It provides:
“57 Reconsideration of decisions of Commission
(1) 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.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision the stated reasons.”
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.”
REASONS
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].
His Honour continued:
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.
The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.”[3]
[3] Skates, [48] - [49].
Therefore, the plurality determined that the terms of the referral are not restricted to the body parts identified. Rather, the nature of the dispute between the parties must be observed.
The decision in Skates was cited with approval by President Phillips in Secretary, New South Wales Department of Education v Connolly[4] and in Voudouris v TDV Constructions Pty Ltd.[5]
[4] [2023] NSWPICPD 38 (Connolly).
[5] [2023] NSWPICPD 53, (Voudouris).
The applicant’s solicitor omitted to plead the scarring in the Application, and this meant that the referral to the Medical Assessor did not include this component, even though Dr Kwong’s assessment included scarring (TEMSKI). The omission was not identified by either party when they were provided with the referral.
Unfortunately the matter proceeded directly to a Medical Assessor without the scheduling of a preliminary conference. Had one been appointed, a Member would have most likely observed the deficiency in the pleadings and this would have been properly addressed.
However, the parameters of the dispute were clear from the correspondence and attached medical reports. The nature of the dispute involved a claim that included scarring (TEMSKI), even though the Application and the referral omitted that body system. Therefore, on the principles discussed in Skates, there are compelling reasons to reconsider the matter.
The criteria that is relevant to reconsideration applications were described in detail in Howell v Stringvale Pty Ltd [6] and Samuel v Sebel Furniture Limited.[7] I do not propose to summarise these as they are well known in this jurisdiction but will examine the facts to determine if the matter warrants a reconsideration based on the relevant criteria identified in these authorities.
[6] [2005] NSWWCC 64, (Howell).
[7] [2006] NSWWCCPD 141 (Samuel).
It is clear that I have a wide discretion to reconsider the referral in accordance with s 57 of the PIC Act, but the discretion must be exercised fairly.[8]
[8] Samuel, [58].
When one has regard to the principles discussed in Howell and Samuel, it is clear that the principle that litigation should not proceed indefinitely must be balanced with the injustice that might arise if a decision is not revisited.
The respondent’s medical evidence did not address scarring because Dr Miniter considered that the applicant’s condition had not reached maximum medical improvement.
Given the threshold issue and the importance for the applicant of an assessment of 15% whole person impairment or more, it is clear that the applicant will suffer greater injustice if the Application is not amended and his claim referred back to the Medical Assessor to assess his scarring (TEMSKI), particularly as the claim for scarring was not insignificant, namely 3% whole person impairment.
The present matter does not involve new evidence. Dr Kwong provided his report and the insurer and its solicitor were well aware of its contents. One could not suggest the respondent would be prejudiced by this.
The authorities confirm that mistake or inadvertence on the part of legal advisers is an insufficient ground. In this matter, the applicant’s solicitor failed to observe the error in the pleadings and the referral.
Of course, the error was not restricted to the applicant’s side, as the insurer and its solicitor seemingly overlooked the error and failed to act. As Basten J said in Skates, “The failure of both parties to raise with the Registrar the error in excluding the left wrist is inexplicable…”.[9] Such basic errors are unacceptable and this has caused unnecessary delay and additional cost to all. This should not occur in the future, and it is recommended that in future, the solicitors involved in this matter take greater care to ensure that claims are properly described.
[9] Skates, [36].
The concept of delay is relevant, but I am satisfied that this application was made expeditiously, so one could not say that the applicant has been tardy.
I am obliged to do justice between the parties according to the substantial merits of the case. It is the objective of the Commission to provide a timely, fair and cost-effective system for the resolution of disputes.
Section 43 (3) of the PIC Act provides that the Commission is to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. I have a wide discretion, but I must be fair, and justice must be done between the parties.
When one considers the principles discussed in Skates, Samuel and Howell, I need to balance the interests of justice between the parties. If I was to decline the applicant’s application, he would not have an assessment of whole person impairment for scarring (TEMSKI), which was always part of his claim and the medical dispute. It was only through inadvertence by his solicitor that he was deprived of an assessment of that body system.
The respondent has not identified any prejudice if the reconsideration is allowed and the matter referred back to the Medical Assessor. The Medical Assessor might find that the applicant has no whole person impairment due to scarring (TEMSKI) which will be of benefit to the respondent.
In the circumstances, the applicant’s application pursuant to s 57 of the PIC Act for reconsideration in accordance with s 329 of the 1998 Act is granted. The COD dated
12 February 2025 will need to be revoked to permit a referral back to the Medical Assessor. The new MAC issued by the Medical Assessor that will prevail over the previous MAC in accordance with s 329(2) of the 1998 Act.
ORDERS
The COD dated 12 February 2025 is revoked.
The applicant’s application pursuant to s 57 of the PIC Act for reconsideration in accordance with s 329 of the 1998 Act is granted.
Page 6 of the Application will be amended as follows:
“Systems Claimed:
a. Right lower extremity (ankle).
b. Left Lower extremity (knee).
c. Scarring (TEMSKI).”
I remit this matter to the President for referral back to Medical Assessor Robert Kuru pursuant to s 329 (1)(b) of the 1998 Act for assessment of whole person impairment as follows:
Date of injury: 7 April 2022 – personal injury.
Body systems / parts: scarring (TEMSKI).
The Medical Assessor is directed to provide a further MAC that incorporates his assessment of whole person impairment in his MAC dated 8 January 2025.
The documents to be reviewed by the Medical Assessor are:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) MAC dated 8 January 2025, and
(d) a copy of this COD.
0
4
0