Marsh v Newcastle Stevedores Pty Ltd
[2021] NSWPIC 173
•8 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Marsh v Newcastle Stevedores Pty Ltd [2021] NSWPIC 173 |
| APPLICANT: | Robert William Marsh |
| RESPONDENT: | Newcastle Stevedores Pty Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 8 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The worker suffered injury to both shoulders and his left knee in 2010; there was a subsequent exacerbation of the left shoulder in a 2012 motor vehicle injury; the AMS assessed a 7/10th deduction pursuant to section 323 for the left shoulder and a 10/10th deduction for the right shoulder; the subsequent effects of the 2012 accident were included in the section 323 deduction of the left shoulder; the overall whole person impairment was assessed by the AMS at 8%; the applicant failed to file an appeal in time against the medical assessment due to gross inadvertence by his solicitor; during this period, the Commission issued a determinatin (COD) in accordance with the MAC; the applicant then filed an application to rescind the COD so that an appeal could be filed; Held- the power to reconsider an order depended upon the interests of justice; Atomic Steel Constructions Pty Ltd v Tedeschi applied; the applicant had strong prospects of success as the application of a subsequent injury in the section 323 deduction was a clear error; Department of Education v Johnson applied; the AMS otherwise failed to explain and give reasons for the 10/10ths deduction of the right shoulder and appeared to reject the agreement on injury; Jaffarie v Quality Castings Pty Ltd (No 2) applied; the conduct of the applicant’s solicitor in causing the delay arguably amounted to “special circumstances” to extend time within the meaning of section 327(5) of the 1998 Act; despite the poor explanation for the delay and undoubted prejudice that the respondent would suffer if an appeal was filed, the COD was rescinded due to the strong prospects of the potential appeal. |
| DETERMINATIONS MADE: | 1. The Certificate of Determination dated 26 November 2020 is set aside pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 as preserved by Schedule 1 clause 14D of the Personal Injury Commission Act 2020. |
STATEMENT OF REASONS
BACKGROUND
Mr Robert Marsh (the applicant) was employed by Newcastle Stevedores Pty Ltd (the respondent) and sustained a compensable work injury on 12 September 2010.
The applicant made a claim pursuant to s 66 of the Workers Compensation Act1987 (the 1987 Act) arising from the injury. The Commission referred the claim to Dr Timothy Anderson an Approved Medical Specialist (the AMS). Dr Anderson provided a Medical Assessment Certificate dated 22 October 2020 (the MAC) wherein he assessed the applicant as having the following whole person impairment (WPI):
(a) left lower extremity – 1%;
(b) right upper extremity – 22% less a 100% deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), and
(c) left upper extremity– 22% less a 7/10th deduction pursuant to s 323 of the 1998 Act.
These assessments produced a combined WPI of 8%.
On 26 November 2020 Arbitrator Wright issued a Certificate of Determination in accordance with the MAC (the COD).
THE PRESENT APPLICATION
The applicant seeks an order rescinding the COD pursuant to s 350(3) of the 1998 Act so that an appeal against the MAC can be filed pursuant to s 327.
The applicant asserts that there is an error in the MAC and seeks leave to appeal pursuant to s 327(3)(c) and (d) of the 1998 Act. Any appeal cannot presently proceed because the dispute has been the subject of a determination within the meaning of s 327(7) of the 1998 Act.
The matter was listed for telephone conference on 21 May 2021 when I raised issues with the parties and directed the provision of further written submissions. The issues I raised included that the applicant had not referred to relevant and binding authority concerning the test for the extension of time under s 327(5) of the 1998 Act[1] and that the general submission of s 323 error did not refer to the Court of Appeal decision of Secretary, New South Wales Department of Education v Johnson.[2] I then advised the legal representatives that I was not prepared to apply an incorrect legal test on the right to extend time under s 327(5) despite both parties making a common but incorrect submission based on a different section of the 1998 Act.
[1] Robertson v Registrar of the Workers Compensation Commission [2008] NSWSC 918 (Robertson).
[2] [2019] NSWCA 31 (Johnson).
EVIDENCE RELATING TO THE DELAY
Mr Michael Evers is the applicant’s legal practitioner. He swore a statutory declaration on 8 March 2021 when he disposed to the following matters:
- A copy of the MAC was received on 22 October 2020. At that time, he requested his Clerk to make an application for WIRO funding and to forward a brief to counsel.
- A copy of the MAC was not sent to the applicant and a brief was not sent to counsel.
- He saw the applicant on 19 February 2021 in relation to a motor accident. At that time he “first learned that the [applicant] had not received a copy of the MAC or given his instructions to Appeal.”
- A brief was then forwarded to counsel.
- On 8 March 2021 an advice was received from counsel and an appeal was filed against the MAC.
A letter from the Commission dated 15 March 2021 refers to an Appeal lodged on 15 March 2021. It noted that the COD had been issued on 26 November 2020 and that it was necessary for a reconsideration application to be filed to set aside the COD before any Appeal against the MAC could proceed. That Application to Appeal was then rejected.
The present application to rescind the COD was lodged with the Commission on 23 March 2021.
LEGISLATION
Section 327 of the 1998 Act provides:
“(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds:
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.
(6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note : Section 329 also allows the President to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.”
A Medical Assessment Certificate is conclusively presumed to be correct in respect of the matters provided by s 326 of the 1998 Act.[3]
[3] Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 (Jaffarie No 2) at [80].
The applicant has moved to set aside the COD pursuant to s 350(3) of the 1998 Act. Section 350(3)[4] confers power on the Commission to reconsider any decision made by the Commission and is in the following terms:
“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.”
SUBMISSIONS
[4] The section was repealed when the Personal Injury Commission commenced on 1 March 2021. However, the provision was saved as it is an unexercised right to proceedings pursuant to Schedule 1, clause 14D of the Personal Injury Commission Act 2020.
Applicant’s submissions
The applicant submitted that he was unaware of the MAC due to administrative error by his solicitors. He has genuine prospects of success, the dictates of justice and the absence of prejudice “demand” that the COD be rescinded.
The delay in the application is “roughly 3 months”. Given the injury was in 2010, this delay is “arguably totally insignificant” and otherwise “falls squarely at the feet at the legal representatives of the applicant”.
Various Presidential authorities in relation to the power to extend time to file an appeal to a Presidential member under s 352(4) of the 1998 Act have held that inadvertence or administrative errors by legal practitioners do not amount to “exceptional circumstances to justify an extension of time to appeal”. This matter is different as the worker was never made aware of the MAC within the appeal period.
The applicant has obvious prejudice if denied a right to appeal as other benefits are “inextricably linked to whole person impairment determinations”. The prejudice to the respondent is minimal and the delay is insignificant.
The AMS made errors including:
- Failure to refer to the contemporaneous x-ray of 27 October 2020. This x-ray showed “minimal degenerative changes”.
- The s 323 deductions were grossly excessive and incorrectly applied the statutory criteria.
- The s 323 deduction of 100% for the right shoulder seeks to subvert the finding of injury. This deduction is not open on the evidence. A failure to investigate does not equate with a failure to complain or experience.
- There is an “improper use and misapplication of s 323”.
- The 7/10th deduction of the left shoulder is not open on the evidence.
- The left knee requires reassessment as “the proper assessment is that of ROM performed by each and every single other assessor to have assessed the worker”.
The applicant provided further written submissions following the telephone conference. He then embraced the discussion in Robertson as setting the relevant test for an extension of time under s 327(5) and that, consistent with the decision of Johnson, a subsequent injury does not fall within the meaning of s 323.
Respondent’s submissions
The applicant has not established “special circumstances”. The time to appeal expired on 19 November 2020 and the application to appeal was lodged on 15 March 2020. The application for reconsideration was filed on 23 March 2020. There is a delay outside the period to appeal of approximately four months, rather than the three months asserted by the applicant.
The delay is not “totally insignificant” as the applicant submitted but shows a “contumelious disregard” for the time limits.
The respondent referred to the decisions relied upon by the applicant as establishing “special circumstances” and submitted that based upon these authorities, “it is plain the applicant has”[5] not satisfied the relevant test.
[5] Respondent’s submissions, [14].
The respondent referred to the statutory declaration signed by the applicant’s solicitor and noted that there was no evidence as to what steps were taken to ensure the applicant had received the MAC and counsel were briefed. It was also noted that it could be inferred that the applicant was advised on or about 19 February 2021 and there was no evidence as to steps taken from that date until 23 March 2021. The respondent submitted:[6]
“The evidence shows not mere administrative oversight (such as miscalculating the last date for appeal or lodging the incorrect form within the time for an appeal) but gross oversight causative of substantial delay of about 4 months. The gross oversight and substantial delay militates against extending time to appeal. There is nothing to suggest this case is marked by ‘special circumstances’.”
[6] Respondent’s submissions, [19].
The respondent noted the prejudice it suffered is that it may lose the benefit of the MAC which is binding on the parties. That prejudice arises because the assessment of permanent impairment was 8% WPI which is less than all relevant thresholds.
The respondent submitted that the applicant has failed to establish that any appeal has reasonable prospects of success. It was submitted that the AMS did not “seemingly accept” the opinion of Dr Posel and the applicant’s submission misconstrued the role of the AMS.
It was noted by the respondent that the radiology report of the left shoulder dated 27 October 2020 was reported as showing “severe osteoarthritic changes”. These changes were reported by Dr Bodel and Dr Posel. A similar view was expressed by Dr Kemp, treating surgeon, in November 2012. Otherwise, Dr Harrington in 2011, as well as Dr Posel and Dr Kemp, opined that the 2010 injury aggravated degenerative changes in the left shoulder.
The applicant’s submissions that the pre-existing left shoulder pathology was “minimal” and the shoulder was “normal” does “not accurately reflect the evidence”.[7]
[7] Respondent’s submissions, [33].
The right shoulder condition was considered by Associate Professor Kleinman. In 2012 he noted no right shoulder problems. The scan evidence of the right shoulder in 2017 showed extensive degenerative changes.
The AMS was entitled to apply a 7/10th deduction of the impairment of the left shoulder based on severe pre-existing degenerative changes.[8]
[8] Respondent’s submissions, [37].
The AMS was entitled to apply a deduction of 10/10th for the “pre-existing changes of the right shoulder as there is no evidence of right shoulder symptoms until some years after the injurious event of 12 September 2010.”[9] The first radiological evidence of the right shoulder was the MRI scan dated 22 August 2017 suggesting that “there were no symptoms requiring treatment until 2017”[10]. Initial treatment reports by Dr Harrington did not refer to the right shoulder.
[9] Respondent’s submissions, [38].
[10] Respondent’s submissions, [38].
The initial clinical notes of Noosa Fair Medical Centre refer to “both shoulders”. However, all subsequent consultations only refer to the left shoulder and the left knee. The subsequent absence of any right shoulder treatment “supports the AMS conclusion [that] the right shoulder condition is all attributed to ‘pre-existing degenerative changes’”[11].
[11] Respondent’s submissions, [43].
The respondent filed further submissions in Reply. I address the reply submissions in the Reasons below.
REASONS
Power to reconsider a prior order
The reconsideration power exercised by the Compensation Court, expressed in almost identical terms to s 350(3) of the 1998 Act, has been the subject of comment by the Court of Appeal in a number of decisions.
In Hatfield Engineering Pty Ltd vFitzgerald[12] Santow JA described the discretion in s 17 of the Compensation Court Act (the predecessor to s 350) as “a discretion virtually without limit.”[13]
[12] [2003] NSWCA 345
[13] at [36], Hodgson JA and Ipp JA agreeing at [1] and [54]
In Reodica v State Rail Authority[14], Tobias JA stated:[15]
“It is well established that s.17(4) of the Court Act confers a discretionary authority upon the Compensation Court itself to review, and correct, errors of both fact and law: Hardaker v Wright & Bruce Pty Limited (1960) 62 SR(NSW) 244 at 248, 249; Schipp v Herfords Pty Limited (1975) 1 NSWLR 412 at 424. The width of the subsection was described by Owen and Walsh JJ in Hardaker (at 249) in the following terms:
‘Such reconsideration was not necessarily limited to an examination of changed circumstances or fresh evidence concerning the original circumstances. It may, in a proper case, extend to considering whether an error had been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appeared to require.
This passage was cited with approval in Schipp by Mahoney JA at 438.’”
[14] [2003] NSWCA 112
[15] at [30], Mason P and Handley JA agreeing at [1] and [2]
In Hardaker v Wright & Bruce Ltd[16] Owen and Walsh JJ noted[17] the observations of Street CJ in Hilliger v Hilliger[18] (Hilliger) concerning the wide discretion in s 71 of the Landlord and Tenant (Amendment) Act 1948 which included the power to vary or rescind as “it may seem proper” and keeping in mind the “distinction between the existence of the power and the occasion of its exercise” and stated “that these observations are applicable” to the exercise of the discretion to vary an award of the Commission.
[16] (1960) 62 SR (NSW) 244
[17] at 248
[18] (1952) SR (NSW) 105
The question of the width and exercise of the power of reconsideration of an award was also discussed in Schipp v Herfords Pty Limited(Schipp).[19]
[19] (1975) 1 NSWLR 412; Samuels JA (at 424 – 426) and Mahoney JA (at 437 – 440)
In Atomic Steel Constructions Pty Ltd v Tedeschi[20] (Tedeschi) Roche DP echoed similar comments to Street CJ in Hilliger when he stated:[21]
“The discretionary power conferred by the reconsideration power is in ‘extremely wide terms’ (Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 at 248). It is important, however, to remember the distinction between the existence of the reconsideration power and the occasion of its exercise, and that courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably (Street CJ in Hilliger v Hilliger (1952) 52 SR (NSW) 105 at 108). Nevertheless, as Street CJ further observed, it is clear that the legislature intended to leave with certain tribunals the power of reviewing the decision to see ‘that justice is done between the parties’.”
[20] [2013] NSWWCCPD 33 (Tedeschi)
[21] at [83]
Special circumstances
The applicant is required to establish that “special circumstances” exist to justify an extension in the time to appeal.
The parties initially referred to authorities discussing the test under s 352(4)[22] of the 1998 Act and did not refer to binding Supreme Court authority on the test set out in s 327(5) of the 1998 Act.
[22] As it was worded prior to 1 March 2021.
In Robertson v Registrar of the Workers Compensation Commission (Robertson), Smart AJ stated:[23]
“47 The appellate Courts have emphasised that in deciding whether an extension of time should be granted and special circumstances exist or some other criterion be met attention should focus on the facts of the particular case. Jess v Scott at 196 warned against reasoning from particular facts in a previous case without paying sufficient regard to the different situation before the decision maker on a later occasion. There is valuable guidance in Jess v Scott at 195 where it is pointed out how the concept of ‘special reasons’ should be approached. I would apply this approach to special circumstances in s 327(5). The Full Court pointed out that the expression special reasons is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. The Courts have held and urged Tribunals to hold that a solicitor's mistake takes the case out of the ordinary. See Mehta and Jess v Scott. Here there are circumstances which take the case out of the ordinary and the combination is striking. A statutory duty is imposed on the solicitor. It is not a question in applying the test of special circumstances, of saying that because in other earlier cases certain events have occurred the circumstances in the latter case are not special. In my opinion the delegate has approached the question of special circumstances incorrectly.”
[23] [2008] NSWSC 918 at [47].
Smart AJ referred to the decisions of the High Court in Sophron v Nominal Defendant[24] and the decision of the Court of Appeal in Stollznow v Calvert[25] where the Courts considered that as “a matter of principle, the blamelessness of a plaintiff personally for the delay is a fact relevant to be considered”.
[24] [1957] HCA 27.
[25] [1980] 2 NSWLR 749 at 750-3.
In its reply submissions the respondent submitted:[26]
“It is apparent that this is not merely a case of errors on the part of a solicitor that cannot be sheeted home to a blameless applicant as the Applicant submits. There remains a dearth of evidence for the Applicant to be able to establish the special circumstances as required under s 327(5) of the 1998 Act.”
[26] Respondent’s submissions in Reply, [5].
This submission contrasted with the initial submission when it asserted that the delay “shows not mere administrative oversight … but gross oversight causative of substantial delay.” Indeed, I consider that submission a generous description of the legal practitioner’s neglect in prosecuting the appeal.
The respondent otherwise sought to distinguish Robertson “on its facts” and submitted that there was a “a dearth of evidence for the Applicant to be able to establish the special circumstances”.[27]
[27] Respondent’s submissions in Reply, [5].
All cases can be “distinguished” on their facts. The real issue is whether the facts of the present case satisfy established legal principle. The parties’ further written submissions accepted the principles discussed in Robertson and did not appear to press the original submissions based on the Presidential decisions discussing the issue of delay in the context of the test applicable under s 352(4) of the 1998 Act.
I accept the respondent’s submission that there is no direct evidence from the applicant as to when he was advised of the MAC. However, the respondent’s suggestion that there is a “dearth of evidence” ignores the solicitor’s statutory declaration which accepts the blame for the inaction in taking active steps to prosecute the appeal. Indeed, the solicitor’s delay identified by the respondent in its reply submissions[28] is precisely what constitutes the “special circumstances” within the meaning discussed in Robertson, that is the notion that the delay was due to a “solicitor’s mistake”.[29]
[28] Respondent’s submissions in Reply, [3].
[29] Robertson at [47].
Based on the statutory declaration sworn by the legal practitioner and the binding decision in Robertson, the applicant has a clear basis to be granted leave to extend the time for filing an appeal. The applicant had no fault in the delay and was not advised of the MAC until 19 February 2021. From that point in time the matter proceeded in an acceptable manner. I am satisfied that there is a clearly arguable claim, even in the absence of evidence from the applicant, of “special circumstances” within the meaning of s 327(5) of the 1998 Act.
Merits of the Appeal against the MAC
The applicant’s submissions in support of the merits of the appeal lacked detail. However, despite the lack of detail in these submissions, there are obvious demonstrable errors in the MAC.
The respondent’s submissions in reply otherwise addressed Johnson in the context of the s 323 deduction for the right shoulder.[30] It failed to adequately address the error made by the AMS in applying a subsequent injury as a basis for making a s 323 deduction for the left upper extremity (shoulder).
[30] Respondent’s submissions in Reply, [12]-[13].
When discussing the proportion of the impairment due to “previous injury or pre-existing condition or abnormality”[31] the AMS concluded that “4/10ths is attributed to the road rage event of August 2012”. The AMS then added that 4/10th with the 3/10th for pre-existing degenerative changes in arriving at an overall s 323 deduction of 7/10th.
[31] MAC, p 7.
There is no doubt that the AMS erred by considering the subsequent 2012 incident in assessing the extent of the s 323 deduction for the left upper extremity. That error is inconsistent with the clear terms of s 323, that is, the section only applies to a prior condition or previous injury (see Johnson at [109].)
To the extent that the respondent asserts that the subsequent injury was a novus actus and was causally independent of the work injury, seemingly a reference to the third category discussed in State Government Insurance Commission v Oakley[32], there is simply no analysis to that effect within the MAC. The AMS “apportioned” the impairment as being 4/10th related to the subsequent 2012 non-work injury and then considered that apportionment in the context of s 323. That analysis was a clear demonstrable error and probably an application of incorrect criteria.
[32] (1990) 10 MVR 570.
The AMS has otherwise assessed 22% WPI of the right upper extremity and made a 100% deduction pursuant to s 323 of the 1998 Act.
Injury to the right shoulder was admitted. The respondent referred to the contemporaneous post-injury complaint of injury in the clinical notes and then the absence of right shoulder complaint until 2017 when an MRI scan was undertaken. Dr Kleinman in 2016 noted a two-year history of right shoulder pain.
The AMS stated:[33]
“With the right shoulder, there does not appear to be any component of injury from either the fall down the hatchway or from the road rage incident. All of this condition is therefore attributed to pre-existing degenerative changes.”
[33] MAC, p 8.
There are several errors with respect to the s 323 deduction of the right upper extremity.
First, the AMS appears to suggest that there was no injury when he stated that “there does not appear to be any component of injury”. That statement is inconsistent with the respondent’s acceptance of injury which is binding on the AMS.[34] The conclusion by the AMS is otherwise inconsistent with the fact that bilateral shoulder pain was recorded by the general practitioner following the injury.
[34] Jaffarie (No 2) at [79]-[81].
Secondly, the respondent bears the onus of proof in establishing the existence and extent of any pre-existing condition.[35] There is also no discussion by the AMS as to how the existence of any pre-existing condition (which is not set out) contributed to impairment.[36]
[35]Asbestos Remover & Demolition Contractors Pty Ltd v Kruse [2017] NSWWCCMA 51; Sadler v
Commissioner for Railways (1969) 123 CLR 216; Pereira v Siemens Ltd [2015] NSWSC 1133. In Matthew
Hall Pty Ltd v Smart [2000] NSWCA 284 at [37], Giles JA accepted the employer’s concession that it bore
the onus in establishing a deduction under s 68A (the statutory predecessor to s 323).
[36] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [90]; Vitaz v Westform (NSW) Pty LtdThere is no discussion or medical analysis as to how the changes shown in the 2017 MRI scan of the right shoulder reveal a condition which pre-existed the 2010 injury and are otherwise entirely unrelated to injury. If the unstated analysis is based on the suggestion that there was no injury, then the conclusion reached by the AMS is wrong. If the changes in 2017 are said to show pre-existing changes prior to injury, then it is not clearly stated nor reasoned.
Thirdly, the respondent’s submissions, appear to suggest that the right shoulder complaints arose either in 2014 (the history given to Dr Kleinman) or 2017 (the MRI scan). If that argument is correct, then it is inconsistent with the finding by the AMS that the entirety of the impairment is due to a pre-existing condition as opposed to a condition that arose after the injury.
Fourthly, there are no adequate reasons to explain how the unknown pre-existing right shoulder condition entirely contributed to the impairment.[37]
[37] See El Masri v Woolworths Ltd [2014] NSWSC 1344 at [50]; State of NSW v Kaur [2016] NSWSC 346 atI also observe that my observation and these reasons on the first point are not a “misreading of the Respondent’s submissions”[38] as the respondent submitted, but my interpretation of error made by the AMS.
[38] Respondent’s submissions in Reply, [1](c).
Despite the obvious errors contained in the MAC, I observe that the applicant’s submission that there were only minor pre-existing degenerative changes in the left shoulder misstate the x-ray dated 27 October 2010. As the respondent correctly submitted,[39] several specialists noted that the October 2010 x-ray described severe osteoarthritis.
[39] Respondent’s submissions, [25]-[29].
It is otherwise difficult to understand the applicant’s submission that the AMS erred when assessing the left knee because “the proper assessment is that of ROM performed by each and every single other assessor to have assessed the knee”.[40] No authority is provided in support of this submission, and I do not accept that it is legally correct. A finding by an AMS which is different to other “assessors” does not amount to a demonstrable error.[41]
[40] Applicant’s submissions, [32].
[41] Merza v Registrar of the Workers Compensation Commission Merza v Registrar of the WorkersThe assessment by the AMS was that both knees had full extension and full flexion. The movement of the injured left knee was therefore comparable to the uninjured right knee. That finding does not disclose any impairment based on loss of range of motion.
Other considerations in relation to the exercise of the discretion
I accept the respondent’s submissions that there is substantial delay in the prosecution of the appeal[42] and that it will suffer real prejudice if the appeal could proceed. I reject the applicant’s submission that the delay is “arguably totally insignificant”. The respondent clearly has the benefit of an assessment which precludes any s 66 compensation, let alone other entitlements because subsequent thresholds were not met.
[42] The respondent correctly categorised the delay whilst the applicant incorrectly described the period.
I accept the respondent’s submission that the finality of litigation is another factor weighing against the exercise of discretion.
CONCLUSIONS
My findings are not binding on the President’s delegate in determining whether leave should be granted to extend time to allow the appeal against the MAC to proceed or on any Appeal Panel if they are required to determine the Appeal. Noting those matters, the finding by the AMS that the subsequent left shoulder impairment caused by the road rage contributed 4/10th to overall impairment and was included in the s 323 deduction is clearly wrong at law. The correction of that error by itself may entitle the applicant to s 66 compensation and exceed the relevant threshold to claim common law damages.
There are other issues in the MAC including the failure by the AMS to provide any reasons how the pre-existing right shoulder condition, if one existed, contributed to injury. There also appears to be a suggestion in the MAC that the applicant did not suffer a right shoulder injury when this was otherwise admitted.
I acknowledge the respondent’s submissions on prejudice and the poor explanation of delay. However, given the strong prospects of success if the Appeal against the MAC proceeds, I conclude that the discretion should be exercised to set aside the COD. In my view this conclusion is consistent with the interests of justice.
ORDERS
The order is set out in the Certificate of Determination. The applicant now has the entitlement to file an application to appeal the MAC pursuant to s 327(3)(c) and (d) of the 1987 Act. The right to appeal is determined in accordance with s 327(4) and s 327(5) of the 1998 Act, that is, by the President being satisfied that a ground of appeal has been made out and that special circumstances justify an increase in the period of an appeal.
I cannot order the applicant to file an appeal within any period. However, if the applicant does not file an appeal with proper expedition, then I will hear a further application by the respondent to reconsider this order.
[2014] CA 254.
[25].
Compensation Commission [2006] NSWSC 939 at [51].
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