| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kapp v St Josephs Village Ltd [2024] NSWPIC 406 |
| APPLICANT: | Griselda Kapp |
| RESPONDENT: | St Joseph’s Village Ltd |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 29 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for reconsideration of Certificate of Determination to permit application for reconsideration of Medical Appeal Panel decision; Sleiman v Gadalla Pty Ltd, Samuel v Sebel Furniture Pty Ltd and Secretary, Department of Communities and Justice v Cannell; Held – application for reconsideration of Certificate of Determination declined. |
| DETERMINATIONS MADE: | The Commission determines: 1. The application for reconsideration of the Certificate of Determination dated 27 July 2016 is declined. |
STATEMENT OF REASONS
BACKGROUND
Ms Kapp was employed by St Joseph’s Village Limited (St Joseph’s) as a personal carer when she suffered a psychological injury on 25 October 2013. She commenced proceedings in the former Workers Compensation Commission on 9 September 2015 claiming weekly compensation, treatment expenses and permanent impairment compensation.
The former Workers Compensation Commission which was abolished in 2021 and replaced by the Personal Injury Commission. I have used the titles of the decision makers relevant at the time the various decisions considered below were made. I have used Commission to apply to the relevant body when events occurred.
At a conciliation conference on 14 December 2015 Ms Kapp and St Joseph’s entered into consent orders which provided for the payment of some weekly compensation and treatment expenses and remitted the matter for referral to an Approved Medical Specialist (AMS).
Dr Samuels, an AMS, issued a Medical Assessment Certificate (MAC) on 18 March 2016 stating that Ms Kapp suffered 6% whole person impairment (WPI).
Ms Kapp appealed and on 22 June 2016 a Medical Appeal Panel (MAP) revoked the MAC and issued a new MAC certifying that she suffered 7% WPI. The Commission issued a Certificate of Determination (COD) on 27 July 2016 consistent with that decision, stating that Ms Kapp had no entitlement to permanent impairment compensation.
In September 2019 Ms Kapp filed a further medical appeal, relying on the grounds of deterioration of her condition and the availability of further evidence. The further evidence included reports by Dr Westmore, psychiatrist, dated 12 March 2018 and Dr Conrad, general surgeon, dated 23 April 2018. Ms Kapp did not pursue that appeal.
On 31 May 2022 Ms Kapp filed an application in the Personal Injury Commission asking that the MAP reconsider its decision under s 378 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). In a decision dated 23 August 2022, the President’s delegate declined the application for reconsideration because the power to reconsider had been repealed, and there were no pending “pre-establishment proceedings”.
Ms Kapp commenced proceedings in the Supreme Court in November 2022, seeking judicial review of the delegate’s decision. The parties entered into consent orders and on 23 April 2023, Elkaim AJ gave an oral decision in which he determined that the orders sought should be made because Ms Kapp and St Joseph’s agreed…
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- Case
- [2024] NSWPIC 406
- Decision Date
CaseChat Overview and Summary
The reasoning of the court was grounded in the principle that while the court retains the power to review decisions to ensure justice is served, it must also be mindful of the public interest in preventing interminable litigation. The court referenced several precedents, including Sleiman v Gadalla Pty Ltd, Samuel v Sebel Furniture Pty Ltd, and Secretary, Department of Communities and Justice v Cannell, to highlight that the court should exercise its discretion judiciously. The applicant's submissions and the material attached to the reconsideration application were closely examined, particularly the delays in filing the reconsideration application and the lack of new evidence to support the appeal. The court found that the principles in Samuel were applicable, and given the protracted nature of the proceedings and the lack of new evidence, the application for reconsideration of the COD was declined.
Ultimately, the court determined that the application for reconsideration of the COD was not warranted, as it would not serve the interests of justice or fairness to both parties. The court emphasized the importance of finality in legal proceedings and the need to prevent repeated litigation over the same issues. The decision underscores the tribunal's role in balancing the rights of the parties with the broader public interest in efficient and fair judicial processes.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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