Marsh v Newcastle Stevedores Pty Ltd

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explanation for the delay and undoubted prejudice that the respondent would suffer if an appeal was filed, the COD was rescinded due to the strong prospects of the potential appeal.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

1. Mr Robert Marsh (the applicant) was employed by Newcastle Stevedores Pty Ltd (the respondent) and sustained a compensable work injury on 12 September 2010.

2. 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 7/10^th deduction pursuant to s 323 of the 1998 Act.