Kari v David Jones Ltd

Case [2025] NSWPIC 26
CERTIFICATE OF DETERMINATION OF MEMBER 
CITATION: Kari v David Jones Ltd [2025] NSWPIC 26
APPLICANT: Mary Rose Kari
RESPONDENT: David Jones Limited
MEMBER: John Wynyard
DATE OF DECISION: 29 January 2025
CATCHWORDS:

WORKERS COMPENSATION - Personal Injury Commission 2020 (2020 Act); claim by worker for reconsideration of Medical Appeal Panel decision and Certificate of Determination (COD) dated 16 January 2016 and 19 February 2016 respectively; whether pursuant to clause 14 of Schedule 1 of the 2020 Act the applicant had an unexercised right in the form of the deterioration of her lumbar spine; whether subsequent COD permitting lumbar fusion which occurred prior to the PIC establishment date sufficient evidence of deterioration; whether discretion to permit reconsideration should be exercised; Held – deterioration concept examined; fusion procedure warranted 20-30% whole person impairment against 0% certified in 2016; deterioration established as an unexercised right; interests of justice principle applied in exercising discretion; observations on the effect of such a reconsideration on applicant’s rights, which applicant undertook not to pursue; COD of 19 February 2016 rescinded and matter referred to Medical Appeal Panel for reconsideration.
DETERMINATIONS MADE:

The Commission finds:

1.     The applicant has an unexercised right to re-assessment by a Medical Panel due to the deterioration in her condition since the Medical Appeal Panel determination of
14 January 2016, as evidenced by the fusion surgery she underwent on 6 November 2020.

2.     The interests of justice are such that I should exercise my discretion in the applicant’s favour.

The Commission orders:

1.     The Certificate of Determination issued by the Workers Compensation Commission dated
19 February 2016 is rescinded.

2. I direct the President (who now performs the functions of the Registrar) pursuant to s 378(1) as preserved, to refer this matter to a Medical Appeal Panel for re-consideration. I note the provisions of cl 14B(b)(2)(b) of Schedule 1 of the Personal Injury Commission Act 2020 in that regard.

STATEMENT OF REASONS

BACKGROUND

  1. Mary Rose Kari, the applicant, originally sought a reconsideration of a Medical Assessment Certificate (MAC) dated 21 August 2015. She was employed by David Jones Limited, the respondent, and suffered injuries on 26 August 2008 and 11 June 2010. The application was subsequently amended to seek a reconsideration of the decision of a Medical Appeal Panel on 14 January 2016, which confirmed the above MAC.

  2. In order to achieve such reconsideration, the applicant seeks the recission of a Certificate of Determination (COD) dated 19 February 2016, which determined her claim for lump sum payment.

ISSUES FOR DETERMINATION

  1. The parties agree that the following issues remain in dispute:

    (a)    is there an “unexercised right” available to the applicant, and

    (b)    if so, should the Personal Injury Commission’s (Commission) discretion be exercised in the applicant’s favour?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

  1. This matter was heard in the Commission on 11 December 2024.  Mr Bryan Brown of counsel, instructed by Mr Stephen Legzdin of Messrs AC Lawyers appeared for the applicant. Mr Fraser Doak of counsel, instructed by Ms Naomi Tancred of…

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Kari v David Jones Ltd [2025] NSWPIC 26
Case
[2025] NSWPIC 26
Decision Date

CaseChat Overview and Summary

In the case of Kari v David Jones Ltd, the applicant, Ms Kari, sought reconsideration of a Medical Appeal Panel decision and a Certificate of Determination (COD) related to her workers' compensation claim. The dispute involved whether the deterioration of Ms Kari's lumbar spine constituted an unexercised right under clause 14 of Schedule 1 of the 2020 Act, warranting reconsideration of the 2016 COD. The court also had to determine whether the subsequent COD permitting a lumbar fusion procedure, which occurred before the establishment date of the Personal Injury Commission (PIC), was sufficient evidence of deterioration to justify reconsideration. Furthermore, the court needed to decide whether the discretion to permit reconsideration should be exercised.

The court examined the concept of deterioration and concluded that the fusion procedure warranted a 20-30% whole person impairment rating, compared to the 0% impairment certified in 2016, establishing deterioration as an unexercised right. The court applied the principle of doing justice between the parties according to the substantial merits of the case and found that the discretion to permit reconsideration should be exercised. The court rescinded the 2016 COD and referred the matter back to the Medical Appeal Panel for reconsideration.

The court's decision preserved sections 350(3) and 387A of the 1998 Act, which granted the Commission and Appeal Panel, respectively, the power to reconsider their decisions. The court noted that Ms Kari was entitled to seek reconsideration of her unexercised right by the Appeal Panel that originally determined her case on 14 January 2016. The court exercised its discretion in favour of Ms Kari, taking into account the principles enunciated by DP Roche in Samuel, which provided a framework for exercising the discretion to reconsider decisions.

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

This preserved s 350(3) of the 1998 Act, which provides:“350 Decisions of Commission(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.(2) …(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.” Section 387A of the 1998 Act was also preserved in as much as it provided power for an Appeal Panel to reconsider its decisions, which was abolished by the amendments. Relevantly it stated:“378 Reconsideration of decisions of Registrar or Appeal Panel(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.(2) …(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).(4) ….(5) …” Thus Ms Kari by virtue of the transitional provisions is entitled to seek that her unexercised right be reconsidered by the Appeal Panel that determined her case on 14 January 2016 (or a different Panel, vide cls 14B(b)(2)(b) and 14D(2) of Schedule 1 of the 2020 Act) which in turn requires the reconsideration of the COD dated 19 February 2016. This entitlement is subject to the discretion of the Commission. The parties concur that the principles enunciated by DP Roche in Samuel apply to such an exercise. After considering the relevant authorities, DP Roche said:[25][25] At [58].“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:1.the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;3.whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);4.one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);5.reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;7.depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and9.the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”

Ratio Decidendi

Legal Principle Established

Section 387A of the 1998 Act was also preserved in as much as it provided power for an Appeal Panel to reconsider its decisions, which was abolished by the amendments. Relevantly it stated:“378 Reconsideration of decisions of Registrar or Appeal Panel(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.(2) …(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).(4) ….(5) …” Thus Ms Kari by virtue of the transitional provisions is entitled to seek that her unexercised right be reconsidered by the Appeal Panel that determined her case on 14 January 2016 (or a different Panel, vide cls 14B(b)(2)(b) and 14D(2) of Schedule 1 of the 2020 Act) which in turn requires the reconsideration of the COD dated 19 February 2016. This entitlement is subject to the discretion of the Commission. The parties concur that the principles enunciated by DP Roche in Samuel apply to such an exercise. After considering the relevant authorities, DP Roche said:[25][25] At [58].“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:1.the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;3.whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);4.one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);5.reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;7.depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and9.the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”