Keshavarz v CPB Contractors Pty Ltd - [2025] NSWPIC 77

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Keshavarz v CPB Contractors Pty Ltd [2025] NSWPIC 77
APPLICANT:	Amin Keshavarz
RESPONDENT:	CPB Contractors Pty Limited
MEMBER:	10 March 2025
DATE OF DECISION:	Mitchell Strachan
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020 (PIC Act); rescind prior Certificate of Determination; section 57 of the PIC Act; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors, and Samuel v Sebel Furniture Limited considered; Held – the applicant’s application to rescind the Certificate of Determination dated 21 March 2024 is refused.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s application to rescind the Certificate of Determination dated 21 March 2024 is refused. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

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 prior Certificate of Determination dated 24 March 2024 (the COD).
There is no dispute that the applicant suffered a psychological injury resulting from the nature and conditions of his employment as a site engineer with a deemed date of injury of
12 January 2022, liability for which is accepted by the respondent.
On 9 August 2023 the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) asserting his whole person impairment was 26% relying on a report of Dr David Kumagaya dated 13 July 2023.
The respondent’s solicitors responded to the claim for lump sum compensation on
10 November 2023 offering to resolve the claim on the basis the applicant’s whole person impairment was 17% as assessed by Dr Saboor in a report dated 29 September 2023.
On 23 November 2023 the applicant commenced proceedings in the Commission seeking to refer the dispute to a Medical Assessor to determine the applicant’s degree of whole person impairment.
The applicant was assessed by Medical Assessor John Baker and a Medical Assessment Certificate (MAC) issued dated 13 February 2024 which assessed the applicant’s whole person impairment at 10%.
Neither party sought to appeal the MAC in accordance with s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and on 21 March 2024 the COD was issued by the Commission finding that the applicant’s whole person impairment was 10% and that the applicant had no entitlement to lump sum compensation due to the operation of s 65A(3) of the 1987 Act.

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.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initially wrote to…

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 77
Decision Date: 10 March 2025

CaseChat Overview and Summary

Keshavarz, the applicant, sought to rescind a Certificate of Determination issued by the Personal Injury Commission in relation to his workers' compensation claim. CPB Contractors Pty Ltd, the respondent, opposed the application. The dispute centred on whether the Commission had erred in law or made a significant error of fact in issuing the Certificate of Determination. The case was heard in the New South Wales Supreme Court.

The court was required to determine whether the Personal Injury Commission had exercised its powers under section 57 of the Personal Injury Commission Act 2020 correctly in issuing the Certificate of Determination. This required the court to consider the principles established in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors and Samuel v Sebel Furniture Limited, which set out the criteria for rescinding a Certificate of Determination. The court needed to examine if there was a significant error of fact or law that warranted the rescission of the Certificate.

The court found that the Personal Injury Commission had not erred in law or made a significant error of fact. It concluded that the Commission had properly exercised its powers under section 57 of the Personal Injury Commission Act 2020. The court rejected the applicant's argument that the Commission had failed to consider relevant evidence or had made an error in the application of the law. As a result, the court refused the applicant's application to rescind the Certificate of Determination.

The court's final order was that the applicant's application to rescind the Certificate of Determination dated 21 March 2024 was refused. The Certificate of Determination would remain in effect, and the applicant's claim for workers' compensation would be governed by its terms.

Orders