Meyers v Andrew Miedecke Motors Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Meyers v Andrew Miedecke Motors Pty Ltd [2024] NSWPIC 357
APPLICANT:	Brett Anthony Meyers
RESPONDENT:	Andrew Miedecke Motors Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	4 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant sustained a lumbar spine injury assessed at 14% whole person impairment; appeal against the Medical Assessment Certificate (MAC) was unsuccessful; section 66 lump sum compensation paid; the applicant subsequently asserted a deterioration of his condition; the Certificate of Determination (COD) was reconsidered and matter referred again for assessment under section 329 based on a threshold dispute; the Medical Assessor assessed permanent impairment at 25%; further COD issued for payment of section 66 lump sum compensation; insurer sought reconsideration of further COD on the basis that the further assessment was limited to a threshold dispute; whether the applicant was entitled to further assessment under section 322A pursuant to section 329; Hochbaum v RSM Building Services Pty Ltd referred to; applicant not entitled to further section 66 lump sum compensation; Lizdenis v Centrel Pty Ltd, Galea v Colourwise Nursery (NSW) Pty Ltd considered; Held – applicant’s claim for reconsideration of MAC and Member’s decision are based on threshold dispute; respondent accepted threshold assessment as valid; COD revoked as to further payment of section 66 compensation.
DETERMINATIONS MADE:	The Commission determines: Findings 1. The respondent accepts that the applicant has a 25% permanent impairment as a result of injury on 14 November 2017 by reason of the Medical Assessment Certificate dated 8 November 2023. 2. The applicant has no entitlement to further compensation pursuant to s 66 of the Workers Compensation Act, 1987. Order 3. The Certificate of Determination dated 13 December 2023 is revoked and replaced with these findings.

STATEMENT OF REASONS

BACKGROUND

Mr Brett Meyers (the applicant) was employed by Andrew Miedecke Motors Pty Ltd (the respondent) and sustained a lumbar spine injury on 14 November 2017.
The background is taken from the parties’ acceptance of the history contained in a previous direction in this matter.[1]
[1] This acceptance occurred at the recorded telephone conference on 27 June 2024.
In August 2019 the applicant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 20% whole person impairment. A medical dispute arose, and the applicant commenced proceedings in the former Workers Compensation Commission.
The medical dispute was referred to an Approved Medical Specialist, Dr Hyde-Page. On 19 March 2020 the Approved Medical Specialist issued a Medical Assessment Certificate assessing 14% whole person impairment due to injury to the lumbar spine (MAC No 1).
The applicant lodged an appeal against MAC No 1.
On 17 June 2020 a Medical Appeal Panel dismissed the appeal and confirmed MAC No 1.
On 22 July 2020 a Certificate of Determination was issued by the Workers Compensation Commission ordering the respondent to pay the applicant $34,083 in respect of 14% permanent impairment resulting from injury on 14 November 2017 (COD No 1).
On 5 June 2023 the applicant lodged an application for reconsideration pursuant to s 329 of the Workplace Injury Management & Workers Compensation Act 1998 (the 1998 Act).
On 23 August 2023 Member Wood reconsidered the matter, revoked COD No 1 and remitted the matter to the President for referral to Medical Assessor Hyde-Page for further assessment of the applicant’s whole person impairment as a result of injury to the lumbar spine (COD No 2).[2]
[2] Myers v Andrew Miedecke Motors Pty Ltd [2023] NSWPIC 427.
There was no appeal from that decision.
On 8 November 2023 Medical Assessor Hyde-Page issued a further Medical Assessment Certificate assessing 25% whole person impairment (MAC No 2). MAC No 2 was not the subject of any appeal.
On 13 December 2023 Principal Member Capel issued a Certificiate of Determination ordering the respondent to pay the applicant $69,310.50 in respect of 25% permanent impairment resulting from injury on 14 November 2017 (COD No 3).
On 13 December 2023 the respondent’s solicitor sent an email to the Personal Injury Commission (Commission) which asserted that there was no claim for lump sum compensation as the claim was limited to a threshold dispute. The respondent requested that COD No 3 be rescinded. In response the applicant accepted that the COD No 3 be amended as the respondent was entitled to credit for the previous order in COD No 1.

RESPONDENT’S RECONSIDERATION APPLICATION OF COD NO 3

The respondent sent a further email to the Commission on 24 March 2024 seeking the revocation of COD No 3.
On 20 May 2024 Principal Member Capel issued directions summarising the history of the dispute, posing questions for the parties and ordering the parties to file written submissions. The parties promptly complied with that direction.
The matter was then reallocated, and it was listed for a recorded telephone conference on 27 June 2024 when the parties addressed various matters in response to questions raised about the written submissions.
The parties confirmed/accepted the following matters at the telephone conference:
(a)    the factual account in the directions dated 20 May 2024 at paragraphs 1-11 were accepted as accurate. Those paragraphs have been summarised in these Reasons under the heading “Background”.
(b)    The applicant’s appeal against MAC No 1 was dismissed by an Appeal Panel on 17 June 2020.
(c) The applicant accepted that the reconsideration application brought before Member Wood was based on the submissions dated 11 July 2023 at paragraph 15, that is the further assessment was for the purposes of obtaining a threshold assessment for the purposes of s 151H of the 1987 Act.
(d) The applicant made a claim pursuant to s 66 of the 1987 Act by letter dated 18 December 2023. The parties requested that I “ignore” this claim for the purposes of determining whether COD No 3 should be revoked.
(e)    The respondent accepted MAC No 2 for the purposes of any threshold dispute.
(f)    The applicant accepted that there were no submissions explaining how the various decisions set out at paragraph 19 of his submissions were “wrongly decided”.
(g)    Neither party brought the observations of the Court of Appeal in Hochbaum v RSM Building Services Pty Ltd[3] to the attention of Member Wood.
[3] [2020] NSWCA 113 (Hochbaum) at [55], footnote 31; White JA agreeing.

REASONS

During the telephone conference the applicant accepted that the claim was reconsidered by Member Wood based on paragraph 17 of his submissions dated 11 July 2023. Those submissions relevantly provided:
“That the President remit the matter to the Medical Assessor for a permanent impairment assessment of the Applicant worker with a view as to whether the Applicant Worker meets or exceeds the threshold enunciated in s 151H of the Workers Compensation Act 1987 pursuant to the enabling powers of sections 329(1A) of the 1998 Act and 57(1) of the Personal Injury Commission Act 2020.”
That concession is consistent with paragraph 22 of the Member’s decision which provided:
“The applicant confirms that he seeks reconsideration of the original MA in its entirety given the effect of the third and final surgery and requests that the matter be remitted to a Medical Assessor for a further assessment as to whether the applicant worker exceeds the threshold announced in s 151H of the 1987 Act.”
That interpretation by the Member is otherwise consistent with the applicant serving a claim for compensation pursuant to s 66 of the 1987 Act on 18 December 2023 based on
MAC No 2. The parties advised me to ignore that claim for the purposes of this application.
Accordingly, based on these matters and ignoring the fact that the applicant made a s 66 claim on 18 December 2023, I agree with the respondent’s written submission that the “reconsideration application was only ever brought for the purposes of s 151H threshold dispute”.[4]
[4] Respondent’s written submissions, par 14(a).
The applicant submitted:[5]
“With the revocation of the first COD, the first s 66 dispute became unresolved, and therefore the original dispute effectively sprang back to legal life.” (emphasis in original)
[5] Applicant’s submissions, par 23.
No authority was cited in support of this submission.
The original s 66 claim had been paid and as held above, the applicant did not contend, and the Member did not understand when determining the reconsideration application, that the applicant was reagitating the s 66 claim.
The applicant had no entitlement to use s 329 of the 1998 Act to pursue a s 66 claim. The applicant had exercised his right to one appeal under s 327 of the 1998 Act.[6] The s 66 claim had been determined and paid and was finalised in the context described by the Court of Appeal in Cram Fluid Power Pty Ltd v Green[7] of a claim that had been “resolved”.
[6] Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 (Sleiman).
[7] [2015] NSWCA 250 at [80].
The repeal of s 378 of the 1998 Act had removed the “safety valve” to reconsider a decision of an Appeal Panel.[8] It would be an extraordinary distortion of the language in s 329 that a reconsideration application can be brought pursuant to that section following an appeal panel determination. The plain language in s 329 is that the provision relates to the determination by a Medical Assessor as opposed to an Appeal Panel. So much is clear from s 329(1)(a) which specifies that the power is an alternative to an appeal under s 327. Further, read contextually, the provision to reconsider a decision of an Appeal Panel was clearly provided by s 378, which, as noted, has been repealed.
[8] Sleiman at [77].
The matter having been decided by an Appeal Panel, it is difficult to understand how there is any basis under s 329 to then reconsider the original medical assessment.
Section 322A of the 1998 Act otherwise provides that the applicant had exhausted his one assessment due to the exercise of the appeal.
The respondent has accepted that there was an entitlement to use s 329 to reconsider the decision of the original Medical Assessor for the purposes of a threshold dispute. I note but do not endorse that concession. The approach taken by the Member is otherwise inconsistent with the observations by Brereton JA in Hochbaum:[9]
“Section 329 (Referral for further assessment) does not extend to permanent impairment, because of s 322A.”
[9] Hochbaum at [55], footnote 31; White JA agreeing.
The applicant specified the basis for the reconsideration application (a threshold dispute) and the Member acted on that application. There was otherwise no basis for the Member to allow the applicant to pursue a further claim for s 66 compensation.
I accept the respondent’s submission that the applicant did not seek a reconsideration and the Member did not rescind the COD No 1 to allow the applicant to pursue a further claim pursuant to s 66 of the 1987 Act. Accordingly, given the scope of the application by the applicant, the Member’s decision and the respondent’s concession, I do not accept that the applicant had any entitlement to further lump sum compensation.
The respondent’s application to revoke COD No 3 is an exercise of discretion. No argument was advanced by the applicant that for discretionary reasons, COD No 3 should not be revoked. However, I have relied on the respondent’s concession that it has accepted
MAC No 3 for any threshold purpose in granting the relief it has sought in this application.
For these reasons, COD No 3 is revoked pursuant to the powers in s 57 of the Personal Injury Commission Act, 2020.
I mention two other matters given what was asserted in this matter and to avoid my comments being misconstrued.
First, I accept that any reconsideration application under s 329 of the 1998 Act may not necessarily be contrary to s 322A. A clear example is where a medical dispute has not been fully determined because a Medical Assessor has not decided the entirety of the medical dispute[10] such as failing to assess scarring. In those circumstances, the reconsideration application would be necessary to complete the original assessment, or, as an alternative to an appeal (s 329(1)(a) of the 1998 Act). This type of reconsideration would not be breach of the one assessment under s322A as the assessment has not been completed or undertaken as an alternative to an appeal.
[10] See Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) at [46]-[48].
Secondly, the respondent referred to earlier decisions of mine as supporting its position that the reconsideration application was only permissible to allow a threshold dispute to proceed.[11]
[11] Lizdenis v Centrel Pty Ltd [2016] NSWWCC 21 (Lizdenis); Galea v Colourwise Nursery (NSW) Pty Ltd [2019] NSWWCC 362 (Galea).
Those decisions have been taken out of context in the respondent’s submissions. In both matters the worker sought to file an appeal based on further information and deterioration under s 327(3)(a) and (b). There was no breach of the one assessment provision under s 322A because the injured worker was entitled to exercise the appeal right (s 322A(4)).
However, the right of an appeal based on deterioration and further information under s 327(3)(a) and (b) is not restrained by any time provision, unlike the “error” based grounds of appeal in s 327(3)(c) and (d) which is limited to a 28-days after the issuing of the medical assessment.
Accordingly, when an appeal is brought against a medical assessment based on deterioration of the worker’s condition, a certificate of determination has often been issued due to the effluxion of time. That certificate will prevent the appeal from proceeding due to s 327(7) which provides that an appeal cannot proceed “once the dispute concerned has been the subject of determination”.
The certificate of determination was revoked in those cases years after it was issued to enable the worker to pursue the right of appeal against the medical assessment. The conundrum is that the worker’s one claim for permanent impairment compensation under s 66 had “resolved”, to use the words in Cram Fluid, as that claim has been determined.
The dilemma in those situations is that the worker has a right of appeal against the medical assessment but seemingly has exhausted his one claim under s 66 given the effluxion of time and the payment of compensation.
I do not intend to summarise the exhaustive discussion in Lizdenis and Galea where I concluded, giving effect to the right of appeal under s 327(3)(a) which is unrestrained by time, whilst acknowledging the prohibition under s 66(1A) of the 1987 Act, that the right to appeal must have work to do.[12] Whether right or wrong, I concluded that the entitlement to appeal years after a medical assessment under s 327(3)(a) must provide a worker with some entitlements and concluded that the appeal right was limited to an entitlement to obtain an assessment based on a threshold dispute.
[12] See Lizdenis at [118]-[124] and Galea at [71].
The applicant made the bare submission that those cases were wrongly decided without any relevant submission. I do not accept the respondent’s submission on the relevance of Lizdenis and Galea to the present dispute and otherwise do not intend to address the applicant’s undeveloped submission.

FINDINGS AND ORDERS

The findings and orders are set out in the Certificate of Determination.

[2024] NSWPIC 357

4 July 2024