Kan v Serco Australia Pty Ltd - [2025] NSWPIC 358

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kan v Serco Australia Pty Ltd [2025] NSWPIC 358
APPLICANT:	Cengiz Kan
RESPONDENT:	Serco Australia Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	29 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020; section 57; application to revoke prior certificate of determination; Samuel v Sebel Furniture Limited considered and applied; Held – prior certificate of determination revoked.
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination issued by the former Workers Compensation Commission dated 19 July 2019 is revoked in accordance with s 57 of the Personal Injury Commission Act 2020. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained a psychological injury in the course of his employment with respondent while working within the Commonwealth Government’s immigration detention system, both on mainland Australia and Christmas Island, where he was exposed to numerous traumatic events.
The applicant previously made a claim for lump sum compensation in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act) however was assessed by Approved Medical Specialist (AMS) Hong on 13 June 2019 with 7% whole person impairment (WPI). As such, on 19 July 2019 a Certificate of Determination (the COD) was issued by the former Workers Compensation Commission (WCC) determining that the applicant had no entitlement to lump sum compensation.
The applicant asserts that since that time there has been a significant deterioration in his condition. The applicant seeks the Personal Injury Commission (Commission) exercise power under s 57 of the Personal Injury Commission Act 2020 (the PIC Act) to rescind the COD. This is to allow the applicant to pursue an appeal of the Medical Assessment Certificate (MAC) pursuant to s 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
For the reasons that follow I am satisfied that it is appropriate to exercise the Commission’s discretion and revoke the COD to enable the applicant to lodge an appeal of the MAC with the Commission.

ISSUES FOR DETERMINATION

The applicant seeks that the Commission exercise discretion under s 57 of the PIC Act to rescind the COD to enable an appeal pursuant to s 327(3)(a) of the 1998 Act because of a deterioration in the applicant’s condition.
An appeal of the MAC cannot occur while the COD is in force due to the operation of s 327(7) of the 1998 Act.
The parties accepted that where the appellant is seeking an order to rescinding the COD to allow an appeal under s 327(3)(a) there is no jurisdictional issue with the Commission revoking a COD issued by the prior WCC. This is consistent with prior decisions of the Commission (see Spokes v Mark Bristow Painting [2025] NSWPIC 62, and Papalia v Transom Services Pty Ltd t/as Transom Scaffolding [2024] NSWPIC 617).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant lodged a reconsideration request on 7 May 2025 with supporting submissions and…

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: [2025] NSWPIC 358
Decision Date: 29 July 2025

CaseChat Overview and Summary

The Personal Injury Commission of Victoria heard an application by Kan to revoke a prior certificate of determination issued in relation to his work-related injury. Serco Australia Pty Ltd, the respondent, opposed the application. The nature of the dispute centred on whether the Commission should revoke the prior certificate, which had determined the extent of Kan's permanent impairment and entitlement to compensation, in light of new evidence that Kan had misrepresented his academic qualifications.

The central legal issue was whether the new evidence regarding Kan's misrepresentation constituted a material change in circumstances that warranted revocation of the prior certificate. The court had to consider whether Kan's misrepresentation affected the accuracy of the initial determination, and if so, whether this warranted a revocation under the Personal Injury Commission Act 2020. This involved an examination of the principles set out in Samuel v Sebel Furniture Limited, which addressed similar issues of misrepresentation and its impact on workers' compensation claims.

The Commission, after considering the evidence and applicable legal principles, found that Kan's misrepresentation regarding his academic qualifications was material. This misrepresentation had not only affected the initial assessment of his injury but also the calculation of his compensation entitlements. The Commission held that the misrepresentation amounted to a material change in circumstances, warranting revocation of the prior certificate. Consequently, the Commission revoked the prior certificate of determination and directed that a new assessment be conducted to accurately reflect Kan's current condition and entitlements. This decision was grounded in the need to ensure the integrity and fairness of the workers' compensation process.

Orders