| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Liao v Hammond Care [2017] NSWWCCPD 40 | |
| APPELLANT: | Yuhong Liao | |
| RESPONDENT: | Hammond Care | |
| INSURER: | Employers Mutual NSW Limited | |
| FILE NUMBER: | A1-7719/13 | |
| ARBITRATOR: | Mr G Egan | |
| DATE OF ARBITRATOR’S DECISION: | 2 May 2017 | |
| DATE OF APPEAL DECISION: | 11 September 2017 | |
| SUBJECT MATTER OF DECISION: | Reasons to be read as a whole: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; reconsideration pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482; consideration of ‘delay’ as a factor; procedural fairness – Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1; issues not raised at first instance: Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 | |
| PRESIDENTIAL MEMBER: | Acting President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Wilson Fox Lawyers |
| Respondent: | Hicksons Lawyers | |
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s decision dated 2 May 2017 is confirmed. | |
INTRODUCTION
This appeal challenges a decision of a Commission Arbitrator refusing, pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), to reconsider a Certificate of Determination dated 18 January 2016.
BACKGROUND
Yuhong Liao (the appellant) suffered conceded psychological injury, deemed to have occurred on 16 May 2012, whilst employed by Hammond Care (the respondent) as a care service employee. She commenced proceedings in the Commission claiming weekly benefits and medical expenses (no 1537/13), and also proceedings claiming lump sum compensation and medical expenses (no 7719/13). Arbitrator Edwards made orders that the two sets of proceedings be joined, and listed the matter for arbitration hearing on 15 April 2014. On 16 April 2014, the Arbitrator made orders by consent that the claims for weekly compensation and medical expenses be discontinued. The appellant’s claim for lump sum compensation was, by consent, referred to an Approved Medical Specialist (AMS) to assess the extent of her permanent impairment.
A Medical Assessment Certificate (MAC) of Dr Parmegiani, an AMS, was issued on 18 June 2014. The MAC concluded that the injury consisted of a temporary aggravation of a pre-existing condition, Schizophrenia, and that no permanent impairment resulted from the injury.
The MAC was appealed to a Medical Appeal Panel (MAP), which issued a decision dated 27 October 2014. The MAP accepted the views of the AMS regarding the condition of Schizophrenia, and its constitutional nature. However, the MAP said that the appellant had also suffered injury involving “an exacerbation of symptoms from a prior anxiety disorder”. The MAP said that the appellant continued to suffer from “this co-morbid condition”, which had “not resolved completely”. The MAP assessed permanent impairment of 24 per cent, which it reduced by 50 per cent for the proportion of the impairment which was due to the pre-existing condition of Schizophrenia, and certified whole person impairment resulting from the injury at 12…
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- AGLC
- Liao v Hammond Care [2017] NSWWCCPD 40
- Case
- [2017] NSWWCCPD 40
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the Appeal Panel's decision should be reconsidered based on the principles outlined in the relevant authorities. Specifically, the court had to assess if the principles laid out in Samuel, such as the wide discretion to reconsider decisions, the necessity for fairness and due regard to relevant considerations, and the duty to do justice between the parties, were properly applied. Additionally, the court needed to examine if the factors of delay and procedural fairness were adequately considered in the Appeal Panel's decision.
In its reasoning, the court found that the Appeal Panel had exercised its discretion in accordance with the established principles. The court noted that the principles of reconsideration were correctly applied and that the Appeal Panel had considered the relevant factors, including the delay in bringing the application for reconsideration and the public interest in not allowing litigation to proceed indefinitely. Furthermore, the court held that the Appeal Panel had acted fairly and did not find any procedural unfairness that would warrant reconsideration. Consequently, the court confirmed the decision of the Appeal Panel, affirming that the reconsideration application was not successful.
The final order of the court was to confirm the Arbitrator’s decision dated 2 May 2017. This decision upholds the Appeal Panel's decision and rejects Mr Liao's application for reconsideration.
Orders
Orders of the court
1. The Arbitrator’s decision dated 2 May 2017 is confirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 378 of the 1998 Act provides:“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) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.(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) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.(5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.” The decision in Samuel reviews various authorities dealing with the reconsideration power, based on s 350(3) of the 1998 Act, and earlier equivalent statutory provisions. The Acting Deputy President at [58] set out a number of principles dealing with the power, which he distilled from the authorities. The appellant relies essentially on this summary of principle. Neither party submits that the summary of principle is other than correct. The passage in Samuel at [58] states:“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).”