Kingham v White, Executive Director of Catholic Schools and Representative for Catholic Education Office Sydney

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kingham v White, Executive Director of Catholic Schools and Representative for Catholic Education Office Sydney [2024] NSWPIC 500
APPLICANT:	Justine Kingham
RESPONDENT:	Dr Dan White, Executive Director of Catholic Schools and Representative for Catholic Education Office Sydney
MEMBER:	Adam Halstead
DATE OF DECISION:	10 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020 (PIC Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); application pursuant to s 57(1) of the PIC Act to reconsider and rescind Certificate of Determination of former Workers Compensation Commission to permit appeal from a Medical Assessment Certificate; section 327(3)(a) of the 1998 Act; new medical evidence; substantial deterioration of medical condition; Samuel v Sebel Furniture Limited considered; Held – arguable ground of appeal; application granted; Certificate of Determination rescinded.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 57(1) of the Personal Injury Commission Act 2020, the Certificate of Determination in matter 4203/18 dated 12 November 2018 is reconsidered and rescinded to permit the applicant to bring an appeal pursuant to s 327(1) against the Medical Assessment Certificate dated 8 October 2018 within 14 days of the date of this Determination.

STATEMENT OF REASONS

BACKGROUND

Justine Kingham (the applicant) requests the Personal Injury Commission (Commission) rescind a decision made on 12 November 2018 in these proceedings by the former Workers Compensation Commission (WCC) when a Certificate of Determination was issued for 19% whole person impairment resulting from injury on 11 July 2014 and that was based upon the Medical Assessment Certificate (MAC) of Dr Brian Williams of 8 October 2018.
In a letter dated 6 June 2024 the applicant’s solicitor sought reactivation of the proceedings by requesting the Commission exercise the discretion at s 57 of the Personal Injury Commission Act 2020 (the PIC Act) to rescind the Certificate of Determination on the basis there has been a deterioration of her condition that results in an increase in the degree of impairment. Rescission is sought to allow an appeal of the MAC pursuant to s 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Dr Dan White, Executive Director of Catholic Schools and Representative for Catholic Education Office Sydney (the respondent) does not oppose the application.
An arbitration hearing was conducted on 29 August 2024 when Mr Perry of counsel appeared for the applicant, instructed by MCW Lawyers, and Mr Murray solicitor of Integroe Partners law firm appeared for the respondent. The decision was provided to the parties at the conclusion of the hearing and the Commission now provides these reasons for that decision.

ISSUES FOR DETERMINATION

The issues for resolution are whether the Commission has the power to rescind a determination of the former WCC and, if it does, whether discretion should be exercised to rescind the earlier Certificate of Determination.

PROCEDURE BEFORE THE COMMISSION

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. There is no dispute as to the issues to be determined. The respondent does not oppose the application and submits it is a matter for the Commission to decide whether discretion to rescind the earlier Certificate of Determination is exercised.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application documents, including the letter dated 6 June 2024 requesting rescission from the applicant’s solicitor with index and attachments (Applicant documents);
(b) documents received from the respondent, including a letter to the applicant, dated 22 July 2024, and attachments (Respondent documents).

FINDINGS AND REASONS

Does the Commission have the power to rescind?

The first issue to be determined is whether the Commission has the power to rescind a decision of the former WCC.
Schedule 1 to the PIC Act contains saving, transitional and other provisions that have effect with respect to the abolition of the former WCC and establishment of the Commission.
Clause 14F of Schedule 1 provides that the review provisions in the PIC Act apply to completed proceedings of the WCC. The effect is that s 57 of the PIC Act can be applied to a decision made by the WCC prior to its abolition.
I am satisfied the Certificate of Determination made by the WCC on 12 November 2018 can be rescinded as permitted by the PIC Act should proper grounds exist.

Are there grounds for rescission?

Sub-section 57(1) of the PIC Act provides that 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.
The applicant seeks rescission of the earlier WCC decision on the basis there has been a “severe deterioration” of her condition. The medical specialist treating the applicant, Associate Professor Daniel Novakovic, states in his 24 April 2023 report that her laryngeal dystonia significantly deteriorated after October 2018[1] (when the medical assessment for the WCC was conducted). Specifically:[2]
“The condition became increasingly difficult to manage, requiring larger doses and a different formulation of botulinum toxin type A over time. She also developed progressive symptoms of difficulty breathing and breathy voice after treatment which required alterations in the treatment regime.”
[1] Applicant documents, p 68.
[2] Applicant documents, p 68 at par 9.
On 28 June 2023 Dr Robert Payten, Ear, Nose and Throat Specialist, conducted an independent medical examination of the applicant and prepared a report wherein he considered her spasmodic dysphonia required the attribution of whole person impairment of 27% following deterioration of the condition.[3]
[3] Applicant documents, p 83.
The respondent arranged for an independent medical examination of the applicant, which occurred on 28 March 2024 and was conducted by Dr Ken Howison, ENT Surgeon.[4] Dr Howison concurred with the finding of Associate Professor Payten that whole person impairment of 27% be attributed to the applicant in relation to muscle tension dysphonia.
[4] Respondent documents, p 2.
The available medical evidence establishes there has been a deterioration in the applicant’s dysphonia condition. The deterioration is undisputed and, according to both independent medical examiners, results in an increase in whole person impairment to 27% from at least June 2023.
While it is not necessary in this application to make any finding (and nor do I) as to the specific level of whole person impairment, I am reasonably satisfied there has been a deterioration of the applicant’s condition that is relevant for the purposes of s 327(3)(a) of the 1998 Act and that results in an increase in the degree of permanent impairment.
The principles applicable to the exercise of discretion in reconsideration applications were summarised in Samuel v Sebel Furniture Limited [2006] NSWWSSPD 141 with reference to the now repealed s 350 of the 1998 Act; s 57 of the PIC Act is equivalent. In that decision, Roche DP considered (at [58]):
“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) 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’), and
9.     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).”
As identified in that decision, there is an expectation that litigation be concluded. It was also accepted however that there would be circumstances where justice requires other factors be weighed in the alternative. In this regard, the respondent highlighted that there are “clearly principles concerning finality of litigation which must be applied” in this application but went on to state they “concede these must be viewed in the context of the statutory rights afforded by s 327(3)(a)” of the 1998 Act.
These are in my view are the competing issues that require resolution, that is, finality of the litigation that was previously determined by the WCC in 2018 on one side and the very real change in the application’s medical condition on the other.
Although it is clear there has been a delay in bringing this application, given several years have passed, that can be explained by the deteriorating nature of the applicant’s condition; the extent and rapidity of which was evidently not anticipated by the medical specialists at the time they conducted examinations prior to the WCC decision of 12 November 2018. Put simply, there would have been no reason for the applicant to make the application at an earlier time because the deterioration had not occurred to the degree it now has. It is axiomatic that the decision of the WCC in 2018 would very likely have led to a different outcome had the medical evidence now before the Commission been available then.
Sub-section 43(3) of the PIC Act requires the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, which undoubtedly reflects the guiding principle for the Commission to facilitate justice is a prompt and economical manner.[5]
[5] Section 42 of the PIC Act.
While I accept the expectation that litigation in the Commission (and in this case its predecessor WCC) be finalised should ordinarily be observed, the substantial merits of this application require the competing issue of the undisputed, not insignificant, deterioration of the applicant’s condition be given preference.
Accordingly, it is appropriate for the discretion found at s 57(1) of the PIC Act to be exercised in favour of the applicant to rescind the decision previously made by the WCC in the Certificate of Determination on 12 November 2018.

Summary

It is accepted there are proper grounds for the Commission to exercise discretion for the purposes of s 57(1) of the PIC Act to rescind the Certificate of Determination made by the WCC on 12 November 2018 so as the applicant may pursue an appeal under s 327 of the 1998 Act.

[2024] NSWPIC 500

10 September 2024