Mezher v Y & T Ghattas P/L t/as Eastlakes Fruit Market
[2022] NSWPIC 474
•29 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Mezher v Y & T Ghattas P/L t/as Eastlakes Fruit Market [2022] NSWPIC 474 |
| APPLICANT: | Karam Mezher |
| RESPONDENT: | Y & K Ghattas Pty Ltd t/as East Lakes Fruit Market |
| Member: | Brett Batchelor |
| DATE OF DECISION: | 29 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant worker sought reconsideration or recission of a 2009 Certificate of Determination (COD) to enable an appeal to proceed against a medical assessment certificate (MAC) on which the COD was based; pursuant to the COD, the applicant was entitled to section 66 compensation of the Workers Compensation Act 1987 (1987 Act) in respect of 6% whole person impairment (WPI) as a result of injury to the lumbar spine in 2004; the foreshadowed appeal against the MAC on the basis of deterioration pursuant to section 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the parties agreed in 2020 based on further medical evidence that the applicant had sustained 11% WPI as a result of the 2004 lumbar spinal injury; however, notwithstanding the fact the applicant was paid the additional section 66 compensation of the 1987 Act to which he was entitled as a result of the 11% WPI assessment the agreement between the parties was not formalised by a complying agreement or COD; the applicant sought section 67 compensation of the 1987 Act for pain and suffering based on the 11% WPI agreed between the parties; issues as to whether the 2009 COD should be rescinded or reconsidered and whether the applicant was entitled to section 67 compensation of the 1987 Act; having regard to the repeal of that section by the Workers Compensation Legislation Amendment Act 2012; consideration of clause 15 of Part 19H of Schedule 6 of the 1987 Act, and clause 10 of Schedule 8 of Workers Compensation Regulation 2016; Held — the 2009 COD should be rescinded and a COD issued reflecting the agreement between the parties that the applicant sustained 11% WPI as a result of the 2004 lumbar spinal injury; the applicant was entitled to compensation for pain and suffering pursuant to section 67 of the 1987 Act; award in favour of the applicant for such compensation. |
| determinations made: | The Commission determines: 1. The Certificate of Determination dated 2 December 2009 is rescinded. 2. The applicant sustained 11% whole person impairment as a result of injury to the lumbar spine on 5 January 2004. 3. The applicant has received from the respondent compensation for permanent impairment payable to him pursuant to s 66 of the Workers Compensation Act 1987 in respect of 11% whole person impairment sustained by him as a result of injury to the lumbar spine on 5 January 2004. 4. The applicant is entitled to receive from the respondent compensation for pain and suffering from that impairment pursuant to the former s 67 of the Workers Compensation Act 1987 of 45% of a most extreme case. 5. The respondent is to pay to the applicant $22,500 compensation for pain and suffering as a result of injury to the lumbar spine on 5 January 2004. |
STATEMENT OF REASONS
BACKGROUND
Karam Mehzer (the applicant/Mr Mehzer) suffered injury to his lumbar spine in the course of his employment with Y & T Ghattas Pty Ltd t/as East Lakes Fruit Market (the respondent) on 5 January 2004.
On 29 November 2004, the applicant made claims for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 18% whole person impairment (WPI), and for pain and suffering pursuant to s 67 of that Act in respect of 40% of a most extreme case, as a result of injury on 5 January 2004.
On 12 April 2005 the applicant brought proceedings in the former Workers Compensation Commission (the WCC) number 5339/05 seeking, inter alia, compensation pursuant to ss 66 and 67 of the 1987 Act as a result of injury sustained on 5 January 2004 (the 2005 proceedings).
On 21 September 2005 a Medical Assessment Certificate (MAC) was issued in the 2005 proceedings containing an assessment of 5% WPI as a result of injury to the lumbar spine on 5 January 2004.
On 21 December 2005 the parties entered into a complying agreement under s 66A of the 1987 Act pursuant to which the respondent agreed to pay the applicant $6,250 compensation pursuant to s 66 of that Act in respect of 5% WPI as a result of injury to the lumbar spine on 5 January 2004.
On 25 January 2006 an Arbitrator of the WCC issued a Certificate of Determination – Consent Orders (COD-COs) noting discontinuance of the 2005 proceedings.
On 17 February 2009 the applicant made claims pursuant to ss 66 and 67 of the 1987 Act for additional permanent impairment compensation and compensation for pain and suffering as a result of injuries to the lumbar spine, cervical spine, left upper extremity and right upper extremity.
On 23 July 2009 the applicant lodged the Application to Resolve a Dispute (ARD) commencing the current proceedings.
On 10 September 2009 a COD-COs was issued in the current proceedings in the following terms:
“In this matter an arbitration hearing was held where the parties came to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows:
By consent:-
1. There will be an award in favour of the Respondent in relation to the claims for:-
• Cervical spine;
• Right upper extremity (shoulder);
• Left upper extremity (shoulder).
2. I remit this matter to the Registrar for referral to an AMS on the following bases:-
a. Date of injury: 5 January 2004
b. Matters for assessment: Lumbar spine only
c. Method of assessment: WPI
d. Evidence:
i. The Application to Resolve a Dispute plus attached documents;
ii. The Reply plus attached documents.
Note: Although the applicant claimed for injury to the cervical spine and the left and right upper extremities, these claims have been abandoned.”
On 26 October 2009 a MAC was issued in the current proceedings containing an assessment of 6% WPI spine as a result of injury to the lumbar spine on 5 January 2004. This certificate was issued by Dr Peter Isbister, Approved Medical Specialist (AMS), following an examination of the applicant on 21 October 2009.
On 2 December 2009 the then Registrar of the WCC issued a Certificate of Determination (COD) in the current proceedings as follows:
“The Commission orders:
1. That the Respondent pay the Applicant, as lump sum compensation under section 66 $7,500.00 in respect of 6% permanent impairment resulting from injury on 5 January 2004.
The Commission notes:
2. That the Respondent was ordered to pay the Applicant's costs as agreed or assessed by the Certificate of Determination dated 10 September 2009.
Brief statement of reasons
3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.”
The applicant was independently medically examined by Dr John Bentivoglio, orthopaedic surgeon, at the request of his solicitor on 8 February 2019. Dr Bentivoglio produced reports dated 11 February 2019 (x2) containing an assessment of 11% WPI as a result of injury to the lumbar spine, and an assessment of 5% WPI as a result of injury to the cervical spine, on 5 January 2004. Using the Combined Value chart, that resulted in an assessment of 17% WPI[1].
[1] Applicant’s Application for Reconsideration (Reconsideration Application) pp 143 and 146, noting that the page references in this Statement of Reasons are to the pages in the electronic records of the Personal Injury Commission (the Commission).
On 5 April 2019 the applicant made a claim for lump sum compensation in respect of 17% WPI as a result of injury to the lumbar spine and the cervical spine. There was also a claim pursuant to s 67 for pain and suffering in the sum of $8,500 as a result of the work related injury. The respondent’s insurer, AAI Limited t/as GIO (GIO), responded to this claim with a notice under s 78 of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 11 June 2019 in which it:
(a) noted the previous award of the Commission in relation to the cervical spine and bilateral upper extremities;
(b) asserted that the applicant would be estopped from bringing a claim for lump sum compensation for (injury to) the cervical spine, and
(c) asserted that the applicant had no entitlement to compensation for pain and suffering[2].
[2] Respondent’s “Supporting Documents for Application to Appeal Against Decision of Approved Medical Specialist” (respondent’s Documents) p 173.
On 30 March 2020 Dr Bentivoglio provided a supplementary report to the applicant’s solicitor[3] in which he addressed matters raised in respect of the claimed injuries to the lumbar spine, the cervical spine and the shoulders on 5 January 2004. Apart from injury to the lumbar spine, Dr Bentivoglio said he would not consider the nature and conditions of the applicant’s employment between March 2003 and January 2004 would have caused any degenerative changes in the cervical spine. He went on to say:
“I would consider, however, the specific incident as he did advise me of symptoms present in his neck may have led to these degenerative changes. I could not explain Mr Mezher’s shoulder complaint to the specific injury that he had in January 2004."
[3] Reconsideration Application p 155.
The applicant lodged in the WCC an ARD dated 22 May 2020 in proceedings number 2999/20 seeking lump sum compensation where degree of permanent impairment is in dispute, and compensation for pain and suffering, in respect of injury to the cervical spine, lumbar spine, lumbosacral spine, right upper extremity and left upper extremity as a result of injury on 5 January 2004.
The respondent lodged a Reply to those proceedings dated 17 June 2020.
Matter number 2990/20 was the subject of a telephone conference before Arbitrator Wynyard (as he then was) on 29 June 2020 and stood over for conciliation/arbitration on 13 July 2020.
On 13 July 2020 Arbitrator Wynyard issued the following Direction:
“1. On the applicant’s application the claim for lump sum compensation with regard to the cervical spine and both upper extremities is discontinued and I dispense with the necessity for the applicant to lodge a Notice of Discontinuance.
2. I grant leave to the applicant to file and serve written submissions as to the effect of Gilliana v Souvenir World (Airport) Pty Limited [2018] NSWWCC 116 by 20 July 2020.
3. I grant leave to the respondent to file and serve submissions in reply and as to quantum by 27 July 2020.”
On 13 July 2020 GIO paid to the applicant compensation for permanent impairment of $6,500[4]. The applicant notes in his submissions referred to hereunder that this represents the balance of compensation payable in respect of 11% WPI, noting that the sum of $7,500 that had been previously paid in respect of 6% WPI.
[4] respondent’s Documents p 186.
On 28 July 2020 the applicant discontinued matter number 2999/20.
On 21 September 2021 the applicant sought to lodge a Form 9 – Appeal Against Decision of Member, which produced the following response on behalf of the President of the Commission to the solicitor for the applicant, cc’d to the solicitor for the respondent:
“We refer to the Form 9 – Appeal Against Decision of Member lodged on behalf of Mr Mezher on 21 September 2021 (the Appeal Application). The Commission notes that the Appeal Application purports to appeal to a Presidential Member against a Certificate of Determination issued by Registrar Leathem on 2 December 2009.
The Commission notes that the submissions accompanying the Appeal Application appear to seek a reconsideration of the Certificate of Determination dated 2 December 2009.
The Personal Injury Commission’s practice in relation to any matters where a party seeks to appeal against a decision of an Approved Medical Specialist (now known as Medical Assessors) where a Certificate of Determination has subsequently been issued (as in the present case) is for a party to lodge a reconsideration application with respect to the Certificate of Determination. This pathway is appropriate as it is necessary (prior to any appeal against the Medical Assessment Certificate being entertained), for the Certificate of Determination to be rescinded. The reconsideration application process permits this course of action to occur and for there to be a decision made as to whether there will be a rescission of the Certificate of Determination.
In view of this practice, it is not appropriate that the Commission accept this appeal, noting that alternative option of a reconsideration application being lodged. Accordingly, the Appeal Application lodged on 21 September 2021 is rejected.
The Commission notes that it cannot deal with an appeal against the Medical Assessment Certificate while there is a Certificate of Determination that has been subsequently issued in a matter.”
On 21 January 2022 the applicant lodged the Reconsideration Application, referred to above at footnote 1, and submissions in support thereof dated 17 September 2021 of Mr Tanner of counsel[5].
[5] Applicant’s submissions dated 17 September 2021.
The matter came before a Delegate of the President of the Commission on 24 May 2022 and was referred back to a Member for a teleconference. In the “Brief reasons” in support of the order, the Delegate noted the following:
(a) the assessment of the applicant by AMS, Dr Peter Isbister, and the issue of the MAC on 12 [sic, 26] October 2009 referred to in [10] above;
(b) the issue of the COD on 2 December 2009 referred to in [11] above;
(c) that the applicant now sought to appeal the MAC dated 26 October 2009 on the basis of deterioration, and that due to the operation of s 327(7) of the 1998 Act, the appeal cannot proceed whilst the COD dated 2 December 2009 exists;
(d) that in the applicant’s submissions dated 17 September 2021 (referred to in [22] above) he sought to set aside the COD dated 2 December 2009;
(e) that due to an administrative oversight that application was forwarded (presumably to the Delegate) for appropriate consideration;
(f) that as at 24 May 2022 the respondent had not replied to the Reconsideration Application, although it appeared that the respondent’s solicitor was served with that application on 21 January 2022;
(g) that as the COD was issued by the Registrar of the WCC, in her capacity as an Arbitrator, the reconsideration of the certificate must be considered by a Member before the substance of the appeal is considered by a delegate of the President, and
(h) accordingly the matter was referred to a Member for teleconference.
The respondent’s documents, referred to in footnote 2 above, were subsequently lodged with the Commission.
The matter came before me for a teleconference on 21 June 2022. On 22 June 2022 a Direction was issued with a timetable for the lodgement and service of submissions by the applicant and respondent, and the proceedings were stood over for conciliation/arbitration on 2 August 2022.
On 22 July 2022, due to the non-compliance by the applicant with the timetable, the conciliation/arbitration date of 2 August 2022 was vacated, and an Amended Direction for Submissions issued. The dispute was directed to be determined ‘on the papers’ at the conclusion of the time allowed for submissions.
Submissions have been received from the applicant dated 22 and 26 July 2022 and from the respondent dated 16 August 2022. The applicant has not lodged any further submissions in reply to the respondent’s submissions dated 16 August 2022.
ISSUES FOR DETERMINATION
The following issues remain in dispute:
(a) Is the applicant entitled to seek reconsideration of the COD dated 2 December 2009, and have recorded that the applicant sustained 11% WPI as a result of injury to the lumbar spine on 5 January 2004?
(b) As it is not now in issue that the applicant has sustained 11% WPI as a result of injury to his lumbar spine on 5 January 2004, is he entitled to compensation for pain and suffering pursuant to the now repealed s 67 of the 1987 Act?
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. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
As noted above, the parties were informed on 22 July 2022 that the matter would be determined ‘on the papers’ at the conclusion of the time allowed for submissions.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents in the current proceedings (also attached to the Reconsideration Application referred to hereunder);
(b) Reply and attached documents in the current proceedings (also attached to the Reconsideration Application referred to hereunder);
(c) ARD and attached documents in matter number 2999/20;
(d) Reply and attached documents in mater number 2999/20;
(e) Election to Discontinue Proceedings in matter number 2999/20;
(f) the Reconsideration Application;
(g) the respondent’s documents;
(h) the applicant’s submissions 17 September 2021;
(i) the respondent’s outline of submissions in response to application for reconsideration, dated 11 February 2022 (respondent’s submissions 11 February 2022);
(j) the applicant’s submissions dated 22 July 2022, which address the issue of reconsideration of the COD in the current proceedings number 5768/09 (applicant’s submissions 22 July 2022), noting that in a number of places in those submissions, there is an incorrect reference to the matter number;
(k) the applicant’s submissions dated 26 July 2022 which address the issue of the quantum of compensation pursuant to s 67 of the 1987 Act (applicant’s s 67 submissions), and
(l) the respondent’s submissions dated16 August 2022.
SUBMISSIONS
A summary of the parties’ submissions is as follows.
Applicant’s submissions dated 17 September 2021
The applicant notes his wish to proceed with an appeal pursuant to s 327(3)(a) of the 1998 Act against the assessment of the AMS, Dr Isbister, on the basis that there has been “a deterioration of the worker’s condition that results in an increase in the degree of permanent impairment”. The evidence on which the applicant relies in seeking the proposed appeal is that he has in 2019 and 2020 been assessed by Dr Bentivoglio to have 11% WPI resulting from the injury on 5 January 2004.
Noting the provisions of s 327(7) of the 1998 Act and the issue by the WCC of the COD dated 2 December 2009 providing for payment of compensation to the applicant pursuant to s 66 of the 1987 Act in accordance with Dr Isbister’s assessment, the applicant seeks reconsideration of the COD to facilitate progress of the appeal.
The applicant therefore submits that it would be appropriate that the COD dated 2 December 2009 be set aside, pending determination for the appeal pursuant to s 327(3)(a) of the 1998 Act, and for an updated COD to be issued following the finalisation of the appeal.
Respondent’s submissions 11 February 2022
The respondent refers to what was said by Deputy President Roche at [58] in Atomic Steel Constructions Pty Ltd v Tedeschi[6] in respect of the power to rescind a COD with reference to the repealed s 350(3) of the 1998 Act, now s 57 of the personal Injury Commission Act 2020 (the PIC Act). Reference is then made to what Acting Deputy President Roche said at [58] in Samuel v Sebel Furniture Ltd[7] identifying the principles applicable to reconsideration applications.
[6] [2013] NSWWCCPD 33.
[7] [2006] NSWWCCPD 141 (Samuel).
The respondent submits that the current application should be rejected and the COD confirmed as:
(a) there is no evidence of deterioration of the lumbar spine and scarring beyond what has already been paid to the applicant pursuant to s 66 of the 1987 Act, and
(b) the public interest in the finality of litigation weighs in favour of the COD being confirmed.
The respondent then addresses the merits of the application. It is noted that those submissions proceed on the following bases:
(a) that there has been agreement reached with the applicant for the award of further lump sum compensation with respect to 11% WPI based on the assessment of Dr Bentivoglio;
(b) that such agreement covers any entitlement owed to the applicant for permanent impairment compensation;
(c) confirmation of the payment to the applicant appears from the GIO’s List of Payments, which is attached to the submissions (and also to the respondent’s documents at p 186; see [19] above and footnote 4 referred to therein);
(d) that there is no proper basis for seeking reconsideration of the COD which would entitle that applicant to establish further entitlement to lump sum compensation, that is, compensation for WPI in excess of 11%;
(e) that the applicant is estopped from pursuing a claim with respect to the cervical spine by consent orders entered into on 10 September 2009 confirming an award for the respondent in respect of this body part, and
(f) the claim for lump sum compensation made which resulted in the issue of the MAC dated 26 October 2009 was in respect of the lumbar spine only, and that an applicant is only permitted to appeal a MAC in respect of the body parts that were the subject of the initial terms of referral and AMS assessment.
The respondent also submits that the applicant has no further entitlement to lump sum compensation in accordance with s 66(1A) of the 1987 Act as he has had his one further claim made after 19 June 2012 which was resolved on 13 July 2020, citing Cram Fluid Power Pty Ltd v Green[8].
[8] [2015] NSWCA 250.
The respondent also submits that the finality of litigation is a relevant consideration and must be weighed against the interests of justice in accordance with Samuel at [58].
The applicant refers to s 322A of the 1998 Act which provides that only one assessment may be made of the degree of impairment of an injured worker.
It is not necessary to refer to these submissions in any further detail as it will become apparent from consideration of the applicant’s submissions hereunder that he is not seeking permanent loss compensation on respect of WPI in excess of 11%, nor is he seeking such compensation in respect of injury to the cervical spine.
Applicant’s submissions 22 July 2022
Paragraphs [1]-[18] of these submissions summarise the history of the applicant’s claim and proceedings in the WCC and the Commission. These has been summarised under BACKGROUND above. However I note that apart from reference to the incorrect matter number of the current proceedings in a number of paragraphs, it was the applicant’s solicitor who arranged for Mr Mezher to be examined by Dr Bentivoglio on 8 February 2019, not the respondent’s insurer (see [12] of the submissions).
At [19] of the submissions the applicant:
“…seeks reconsideration the Certificate of Determination issued under Matter No. 5798/09 in order to record the correct degree of impairment that has resulted from the subject injury and the consequent deterioration of the condition of his lumbar spine, and compensation pursuant to s 67, given the threshold required by that section has been reached.”
The applicant then notes that his entitlement pursuant to s 67 requires interpretation of the changes made to the workers compensation legislation in 2012. These submissions will be considered under FINDINGS AND REASONS.
Respondent’s submissions dated 16 August 2022
The respondent refers to [19] of the applicant’s submissions dated 22 July 2022, quoted above at [44]. It then sets out the terms of the COD-COs dated 10 September 2021, quoted above at [9], and of the COD dated 2 December 2009, quoted above at [11].
At [5] of the submissions the respondent then “presumes” that the applicant is seeking reconsideration of the COD [sic, COD-COs] dated 10 September 2009 and Dr Isbister’s MAC. At [6] of the submissions, the respondent submits that if the applicant is seeking reconsideration in respect of the cervical spine, the left upper extremity (shoulder) and the right upper extremity (shoulder), he is estopped from claiming compensation in respect of these body parts “…pursuant to the COD dated 10 September 2009.”
At [7]-[13] of its submissions the respondent then refers to past agreement in respect of the lumbar spine, noting the three occasions on which the applicant has received permanent loss compensation as a result injury to the lumbar spine. He has now received permanent impairment compensation in respect of 11% WPI as a result of injury to the lumbar spine. At [9] of the submissions the respondent notes that, prior to the settlement on 13 July 2020 of the claim for compensation for a further 5% WPI in accordance with Dr Bentivoglio’s report dated 11 February 2019, the applicant made a claim dated 4 [sic, 5?] April 2018 for:
“(a) $23,000 re 17% WPI;
(b) $ 8,500 re s 66”.
That is the claim referred to at [13] above, with the qualification that according to the s 78 notice dated 11 June 2019, the claim was made by way of letter dated 5 April 2019, not 4 April 2019. I have been unable to locate the letter of claim in the evidence currently before the Commission.
The respondent then submits that this claim, dated 4 [sic, 5] April 2019 and the settlement of that claim, is the applicant’s one claim pursuant to s 66(1A) of the 1987 Act, having regard to Sch 6, Pt 19H, Div 3, cl 15 of the 1987 Act. That is the transitional provision dealing with the restriction introduced into the 1987 Act by the insertion of s 66(1A) by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act).
It is apparent from the applicant’s submissions dated 22 July 2022 that he is not seeking reconsideration of the COD-COs dated 10 September 2021, nor is he seeking to:
(a) claim permanent loss compensation in respect of injury to the cervical spine, the left upper extremity or the right upper extremity, or
(b) further permanent loss compensation beyond what he has been awarded to date in respect of 11% WPI as a result of injury to the lumbar spine.
The applicant is seeking reconsideration of the COD dated 2 December 2009 in order to record the correct degree of impairment that has resulted from the injury of 5 January 2004, and the consequent deterioration of the condition of his lumbar spine from that recorded by Dr Isbister in the MAC dated 26 October 2009. The applicant submits that, as it is now agreed that he suffers from 11% WPI as a result of injury to the lumbar spine, he is entitled to compensation for pain and suffering pursuant to the former s 67 of the 1987 Act.
That the applicant is seeking reconsideration of the COD dated 2 December 2009 is confirmed by what the Delegate of the President noted at [5] in his Decision dated 24 May 2022 that:
“In submissions dated 17 September 2021, but received in the Commission at the same time that the appeal was lodged, the applicant also seeks to set aside the Certificate of Determination dated 2 December 2009.”
The respondent at [14]-[17] makes submissions on the applicant’s entitlement to compensation for pain and suffering pursuant to s 67. These will be discussed hereunder.
The respondent then makes submissions in respect of the “Request for reconsideration and lack of deterioration”. These are based on the incorrect assumption that the applicant is submitting that there has been deterioration in his lumbar spine since the agreement between the parties that he now has 11% WPI as a result of injury to the lumbar spine as assessed by Dr Bentivoglio in his report dated 11 February 2019.
The respondent also makes submissions on s 329 of the 1998 Act, which deals with referral of a matter for further medical assessment or reconsideration. The applicant is not seeking any such referral.
The respondent relies on the decision of the President of the Commission in Yildiz v Fullview Plastics Pty Ltd[9] at [76] to submit that the applicant’s original claim made 29 November 2004 was settled by way of complying agreement, and that as such, the original claim “…is not capable of being amended, to preserve the rights to former benefits under section 67 of the 1987 Act.” This case will be discussed hereunder when the applicant’s entitlement to s 67 compensation is addressed.
FINDINGS AND REASONS
[9] [2019] NSWWCCPD 24 (Yildiz).
Reconsideration of the COD dated 2 December 2009
Section 57 of the PIC Act is as follows:
“(1) 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.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a)alter the decision to correct the error, or
(b)direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a)issue a replacement certificate with the error corrected, or
(b)direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a)there is an obvious clerical or typographical error in the text of the notice or statement, or
(b)there is an error arising from an accidental slip or omission, or
(c)there is a defect of form, or
(d)there is an inconsistency between the stated decision and the stated reasons.”
This section replaces the repealed s 350(3) of the 1998 Act which was as follows (reference to “the Commission” being to the WCC):
“(3) The Commission may reconsider any matter that has been the dealt with by the Commission and rescind, alter or ament any decision previously made or given by the Commission.”
Acting Deputy President Roche considered the WCC’s power of reconsideration in Samuel and made the following observations (omitting citations apart from Anshun):
“1. the section gives the Commission a wide discretion to reconsider its previous decisions;
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include 6an 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;
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;
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;
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, and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case.”
In its submissions dated 11 February 2022 the respondent submits that the current application should be rejected and the COD confirmed as:
(a) there is no evidence of deterioration of the lumbar spine and scarring beyond what has already been paid to the applicant pursuant to s 66 of the 1987 Act, and
(b) the public interest in the finality of litigation weighs in favour of the COD being confirmed.
That submission proceeds on the premise that the applicant is seeking s 66 compensation as a result of injury to the lumbar spine resulting WPI in excess of 11%. That is not the case. The respondent acknowledges that the applicant has been paid permanent impairment compensation for this level of WPI.
Permanent impairment compensation was paid to the applicant pursuant to the following documentation:
(a) complying agreement dated 21 December 2005 pursuant to which the applicant received $6,250 for 5% WPI as a result of injury to the lumbar spine[10];
(b) $1,250 for further 1% WPI as a result of injury to the lumbar spine consistent with the COD dated 2 December 2009.[11] The terms of the COD are set out at [11] above. The sum of $1,250 paid to the applicant represented the difference between compensation payable for 5% WPI and for 6% WPI assessed by Dr Isbister in MAC dated 26 October 2009 ($7,500), and
(c) $6,500 for a further 5% WPI in accordance with the report of Dr Bentivoglio dated 11 February 2019 who assessed the applicant as having sustained 11% WPI as a result of injury to the lumbar spine.
[10] ARD p 52.
[11] Reconsideration Application p 142.
The Commission did not issue a COD evidencing the last mentioned payment, nor did the parties enter into a complying agreement. Evidence of the payment by the GIO of this sum is referred to at [19] above and footnote 4.
In my view, and having regard to what was said in Samuel in respect of the discretion given to the Commission to reconsider its previous decisions, in this case the discretion should be exercised in favour of the applicant for the following reasons:
(a) the Commission has a wide discretion to reconsider its previous decisions;
(b) it is the COD dated 2 December 2009 that the applicant wishes to have reconsidered;
(c) the applicant originally approached the Commission on 21 September 2021 by lodging a Form 9 – Appeal Against Decision of Member which was the subject of email correspondence from the President of the Commission to the applicant’s solicitor dated 22 September 2021, quoted at [21] above;
(d) the applicant lodged the Reconsideration Application on 21 January 2022;
(e) due to an administrative oversight the matter was referred to the President’s Delegate who gave his decision on 24 May 2022, noting that as the COD dated 2 December 2009 was issued by the Registrar of the WCC in her capacity as an Arbitrator, the reconsideration of the certificate must be considered by a Member of the Commission before the substance of the appeal is considered by a delegate of the President;
(f) the matter was then referred to me and a teleconference took place on 21 June 2022;
(g) the applicant is not now seeking reconsideration of the COD dated 2 December 2009 in order to pursue an appeal against the MAC of Dr Isbister dated 26 October 2009, but to seek compensation for pain and suffering pursuant to the former s 67 of the 1987 Act;
(h) the parties agree that the applicant has suffered 11% WPI as a result of injury to his lumbar spine;
(i) notwithstanding delay on the part of the applicant in not bringing the matter before the Commission until 2021 following that agreement between parties which dated from 13 July 2020 with the payment of $6,500 to the applicant by the GIO, the respondent has not raised any issue in respect of the delay, and I do not regard it as significant when considered along with other factors;
(j) the respondent argues against recission of the COD dated 2 December 2009 on the mistaken assumption that the applicant is seeking permanent loss compensation on the basis of further deterioration of WPI as a result of injury to the lumbar spine in excess of 11%;
(k) the evidence on which the applicant seeks to rely in support of the agreement reached between him and the respondent that he has suffered 11% WPI as a result of injury to the lumbar spine is that of Dr Bentivoglio in his report dated 11 February 2019. That report was obtained by the applicant’s solicitor, but accepted by the respondent. There is no evidence as to whether or not it could have been obtained with reasonable diligence before that date;
(l) issue of an amended COD will confirm the agreement between the parties as to the level of WPI suffered by the applicant as a result of injury to the lumbar spine. It will not prevent the respondent from arguing as it has done that, in the circumstances, the applicant is not entitled to compensation for pain and suffering. The respondent is not therefore prejudiced by issue of an amended COD;
(m) acknowledging that litigation should not proceed indefinitely, this matter already has a long history, and whether the applicant is successful or not in his claim for compensation for pain and suffering, it appears that subject to any appeal from this decision, it is difficult to see any further litigation in which the applicant may engage following finalisation of the current proceedings;
(n) the discretion 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. Delay has been addressed above, and
(o) the Commission has a duty to do justice between the parties according to the substantial merits of the case.
Section 57 of the PIC Act gives the Commission to rescind, alter or amend any decision previously made or given by the Commission. In my view, the COD dated 2 December 2009 should be rescinded and a new Certificate issued.
Section 67 compensation
Clause 15 of Pt 19H of Sch 6 of the 1987 Act provides:
“15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Clause 10 of Sch 8 of Workers Compensation Regulation 2016 (the 2016 Regulation) (formerly cl 11 of the 2010 Regulation) provides:
“10 Lump sum compensation
(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”
The applicant in his submissions dated 22 July 2022 submits that the effect of cl 10 is to provide that the 2012 amendments (which repealed any entitlement pursuant to s 67 of the 1987 Act) do not apply to any claim made before 19 June 2012, in terms of which compensation was sought under ss 66 and 67 of the 1987 Act. This raises the question of whether the applicant may now be awarded compensation pursuant to s 67 now that he has reached the threshold of 11% WPI.
The applicant notes that the respondent asserts that the applicant is not entitled to be so compensated because, following the 2012 amendments, an entitlement under s 67 was removed, and the exception pursuant to cl 10(1) of Pt 1 of Sch 8 of the 2016 Regulation does not apply, because prior claims for compensation pursuant to s 67 were “resolved” or finalised. The applicant notes that the argument proceeds on the basis that claims were made, but those proceedings concluded on the basis that the applicant had no entitlement pursuant to s 67.
This last mentioned submission of the respondent noted by the applicant is confirmed at
[16]-[17] of the respondent’s submissions dated 16 August 2022, where the respondent notes that the applicant made his most recent claim on 4 [sic, 5] April 2019.The applicant then says that the respondent relies on the decision of Senior Arbitrator Capel in Gilliana Souvenir World (Airport) Pty Ltd[12]. The respondent does not refer to this case in its written submissions. Nevertheless the applicant correctly observes that the case did not concern the preservation of rights to claim s 67 compensation in the wake of the 2012 amendments, but rather whether the worker was entitled to bring “one further claim for lump sum compensation pursuant to section 66.” In the event, having regard to the history of prior claims and resolutions, the Senior Arbitrator held that he was, and that one further claim brought in 2014 which resulted in consent orders for compensation pursuant to ss 66 and 67 finalised the claim for s 67 compensation, as it had been determined.
[12] [2018] NSWWCC 116 (Gilliana).
That case does not assist in the current matter. The respondent acknowledges that the applicant’s claim of 5 April 2019 was the one further claim that he was entitled to bring.
The applicant draws a distinction between the facts in Gilliana and his case, submitting that at no stage has there been a determination of any claim pursuant to s 67. The complying agreement entered into in 2006 was limited to providing compensation pursuant to s 66 to be paid to the applicant. Similarly, the COD dated 2 December 2009 was limited to an award pursuant to s 66.
I accept the applicant’s submission that his claims for compensation pursuant to s 67 were not resolved, finalised or determined by the complying agreement in 2006, the COD dated 2 December 2009, or at any time prior to the amendment of the 1987 Act by the 2012 amending Act.
The applicant relies upon what the former President of the WCC held in Woolworths Ltd v Wagg[13] held when he considered preservation of s 67 entitlements following the repeal of that section by the 2012 amending Act. In that case the worker made a claim for s 66 compensation prior to the 2012 amendments. His Honour was satisfied that the fact of such prior claim meant that, as provided by cl 10 of Sch 8 to the 2016 regulation, the 2012 amendments did not apply, and the worker was entitled to have her entitlement to s 67 compensation determined after the 2012 amendments, even though she did not specifically claim compensation pursuant to s 67 prior to the amendments.
[13] [2017] NSWWCCOD 13 (Wagg).
His Honour said at [90]:
“Woolworths’ submissions describing the entitlements under s 67 as having been ‘extinguished’ or ‘reinvigorated’ is not to the point. The question is whether the entitlement to permanent impairment compensation had been the subject of a claim made before 19 June 2012. As it is clear that such a claim had been made Mrs Wagg was free to pursue her claim under s 67, notwithstanding repeal of that section by the amending Act.”
and at [99]:
“I am satisfied that the Arbitrator was correct to find that the amendments introduced by Sch 2 of the amending Act do not apply to Mrs Wagg because she had made a claim specifically seeking compensation under s 66 before 19 June 2012. Therefore, it did not matter whether the threshold for s 67 benefits was reached before or after 19 June 2012. Having made a claim for s 66 benefits in respect of the injury, the benefits available under s 66 and s 67, as those benefits existed prior to the introduction of the amending Act, were preserved.”
In this case the applicant originally made his claim for compensation pursuant to ss 66 and 67 of the 1987 Act on 29 November 2004[14]. A further claim for such compensation was made on 17 February 2009[15].
[14] respondent’s Documents p 16.
[15] ARD p 49.
The applicant refers to the decision of the President of the Commission of Yildiz. In that case his Honour, confirming the Arbitrator’s decision, held on the facts of that case that Mr Yildiz’s entitlement to s 67 benefits was not preserved by the savings and transitional provisions introduced by the 2012 amending Act. The facts were briefly that Mr Yildiz made a claim prior to 19 June 2012 for compensation pursuant to s 66 of the 1987 Act which was resolved between the parties by way of a complying agreement which provided for payment to Mr Yildiz of a sum in respect of 7% WPI. A subsequent claim made in 2017 resulted in an award by the Arbitrator in favour of Mr Yildiz in respect of 17% WPI, and an award in favour of the respondent employer on the applicant’s claim under s 67.
The President said at [71]:
“The claim for s 67 benefits is not a claim for compensation which is capable of payment in accordance with the 1987 Act. That is because at the time the original claim was made the assessment of permanent impairment resulting from injury was 7% whole person impairment, and the degree of permanent impairment did not reach the threshold of more than 10 per cent. Mr Yildiz cannot seek to attach his current assessment of impairment of 17% to the original claim for s 66 benefits, which was resolved by complying agreement, in an attempt to preserve his entitlement to s 67 benefits. If Parliament intended that entitlement to s 67 benefits extended to workers in Mr Yildiz’s present position it would have expressly provided for this in the savings and transitional provisions.”
and at [76]:
“Mr Yildiz’s claim for lump sum compensation for pain and suffering pursuant to s 67 of the 1987 Act in respect of his existing impairments is not preserved by cl 10 of Pt 1 of Sch 8 to the 2016 Regulation. That is because the only claim for lump sum compensation made before 19 June 2012 was resolved by a complying agreement and that claim is not capable of being amended, to preserve the rights to former benefits under s 67 of the 1987 Act.”
The applicant submits that in the current matter the applicant’s entitlement to compensation pursuant to s 66 was determined by the Registrar of the WCC, in her capacity as an Arbitrator, on 2 December 2009 in the current proceedings. His entitlement was not governed by a complying agreement as in the case of Yildiz. That is correct. The applicant seeks to have the COD dated 2 December 2009 reconsidered to reflect the deterioration in his condition, and having reached the 11% WPI threshold, his entitlement to compensation pursuant to s 67. He is not seeking to amend the claim made prior to the issue of the COD. I accept that.
The applicant submits that the decisions in Gilliana, Wagg, and Yildiz, did not involve consideration of entitlements in the context of reconsideration of a pre-2012 COD (which is the subject of the current proceedings). That is correct.
The applicant submits that s 327(a) of the 1998 Act provides for an appeal against a MAC if the condition of the worker has deteriorated resulting in an increase in the degree of permanent impairment. He submits that it is the practice of the Commission to allow reconsideration of CODs (made pursuant to an assessment of impairment recorded in a MAC), in order to enable an appeal against that assessment to proceed pursuant to s 327(a) of the 1998 Act. This practice of the Commission is recognised in the letter from the President dated 22 September 2021, set out at [21] ,above, and in the Delegate’s decision dated 24 May 2022, set out at [23] above.
The applicant submits that in the current matter is common ground that the applicant’s condition has deteriorated, that the relevant degree of permanent impairment has increased, and that the parties have agreed on the current degree of impairment. I accept that that is the case.
The applicant therefore submits that it is not necessary for an appeal to proceed against the assessment of Dr Isbister, and that the reconsideration of the COD dated 2 December 2009 can proceed on the basis of the agreed degree of permanent impairment. I agree that that is the appropriate course. The agreed degree of permanent impairment provides the necessary statutory basis for an award to be made under s 67 in respect of the pain and suffering experienced by Mr Mezher.
The applicant refers to what was said by Bishop CCJ in Maksoudian v J Robins & Sons Pty Ltd[16] in discussion of the principles applicable to reconsideration applications in the workers compensation jurisdiction. The applicant submits that there is plainly “fresh evidence” of deterioration in the applicant’s condition, and it follows that had such evidence been available in 2009, the applicant would have been entitled to an award under s 67.
[16] [1993] NSWCC 36.
I find that the applicant is entitled to pursue a claim pursuant to the former s 67 of the 1987 Act for pain and suffering as a result of injury to his lumbar spine on 5 January 2005. In accordance with my finding at [65] above, the COD dated 2 December 2009 is rescinded and a new certificate issued to reflect the agreed degree of 11% WPI. Consideration will now be given to the quantum of an award pursuant to s 67.
Compensation for pain and suffering
The only submission made by the respondent in respect of the quantum of any s 67 award appears at [31] of its submissions dated 16 August 2022 as follows:
“If the PIC is to find that the applicant does have an entitlement to compensation for pain and suffering, the Respondent submits that the Applicant’s submission of $33,000 is manifestly excessive due to the Applicant just obtaining the 11% WPY threshold and the medical evidence consistently not finding verifiable radiculopathy.”
The applicant’s s 67 submissions set out the following matters asserted to be relevant to a claim for compensation for pain and suffering:
(a) Mr Mezher was 52 years of age at the time he sustained injury to his back on 5 January 2004. He has experienced pain and loss of amenities for the past 18 years and is likely to continue to experience the effects of his injury into his eighties;
(b) the evidence provided in his statement, and recorded by medical practitioners who have examined him, confirms that he grapples with constant back pain;
(c) a matter relevant to the assessment is that Mr Mezher underwent surgery on 26 October 2017, a hemilaminectomy, decompression, microdiscectomy, and rhizolysis operation at L4/5 at the Prince of Wales Private Hospital, from which he was discharged on 28 October 2017, and
(d) despite the operation, Mr Mezher suffers from constant lower back pain and stiffness.
The applicant refers to the following matters at [18]-[28] in his statement dated 29 May 2020[17]. The matters relevant only to his back injury are summarised as follows:
(a) inability to bend or lift without aggravating the pain in his lower back, and experiences shooting sharp pain down the left leg, and pins and needles;
(b) difficulty walking, standing, sitting, bending and twisting without pain;
(c) inability to attend to the more demanding aspects of domestic chores such as gardening and home maintenance;
(d) stomach pain which is attributed to the ingestion of pain medication, with consequent medical advice to stop such medication;
(e) feeling moody, irritable and depressed due to inability to take pain medication;
(f) (notwithstanding what is claimed in (d) and (e) above), a list of the medication taken daily or weekly, and
(g) inability to work, causing financial stress, impact on self-esteem, and inability to engage in social or recreational pursuits.
[17] ARD matter number 2999/20 p 10.
The applicant submits that the AMS, Dr Isbister, has recorded in the MAC dated 26 October 2009 symptoms consistent with those in his statement.
Similarly, the applicant refers to the symptoms recorded by Dr Bentivoglio in his report dated 11 February 2019 consistent with his statement evidence. In particular, Dr Bentivoglio notes that there was some improvement in symptoms following surgery in October 2017. Probably the lower limb symptoms were more improved that his back symptoms. Postoperative physiotherapy did not provide lasting improvement in symptoms.
The applicant submits that, having regard to the matters summarised above, an appropriate measure of his pain and suffering, considered with reference to a most extreme case is two-thirds, that is 66%. That represents a lump sum entitlement of $33,000 pursuant to s 67 of the 1987 Act.
The decision of Commissioner Wright in the former Compensation Court of New South Wales in Tyler v Marsden Industries[18] is often quoted when decisions as the quantum of compensation for pain and suffering are being considered. At [14] the Commissioner listed the following factors and principles to take into account in determining the appropriate amount under s 67 (summarised and omitting citations):
[18] [2001] NSWCC 194; 22 NSWCCR 644.
(a) Pain and suffering awards under s 67, unlike the objective criteria in s 66 awards for physical loss and impairment, must take into consideration the actual individual experiences of the claimant, as to his or her past and future pain and suffering.
(b) The measure of the extreme case must be compared with the measure of a most extreme case and does not need to make a comparison with the most extreme case.
(c) The pain and suffering must result from the loss/impairment and not merely the injury (s 67(1A).
(d) Pain may be compensated even if the extent of the loss and its effects are not assessable until a later date.
(e) Pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss/impairment is crystallised.
(f) There is no necessary relationship between the impairment/loss and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all the circumstances, an award may be overturned on the basis of falling outside the range of a sound discretionary judgment.
(g) The age of the claimant is relevant. the Court of Appeal has observed that the younger a person is at the time of injury (loss) the greater is the chance that the worker would get into an extreme case category, but each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently. The Court of Appeal has reiterated age was a relevant consideration because age at injury had implications for the expected duration of any pain and suffering.
(h) Distress caused by interference with social activities or by the effects of the compensable injury on a worker’s relationships including marriage can be relevant.
(i) Objective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing therefrom, as well as the need for medication and difficulty with sleeping.
This analysis has been approved in a number of Presidential decisions in the WCC.
As noted at [106(f)] above, there is no necessary relationship between the impairment/loss and the intensity and duration of the pain and suffering. Therefore the fact that the applicant has suffered 11% WPI as a result of injury to his lumbar spine, just over the 10% WPI threshold which entitles him to compensation for pain and suffering, is not a factor in the limitation of any s 67 award. It is the actual experiences of the applicant which must be considered, and the impact on him, both past and future. Pain and suffering is compensable from the date of injury, and not from the time when he was assessed by Dr Bentivoglio as having sustained 11% WPI.
For the same reason that fact that, according to the respondent, the medical evidence consistently has not found verifiable radiculopathy is not a factor in the limitation of any award.
I accept the applicant’s submissions as to the period over which Mr Mezher has experienced pain and suffering since the date of injury and its likely duration for the rest of his life. Some of that is no doubt due to the non-compensable conditions from which he suffers in his neck and shoulders, and it is difficult to attribute a degree of pain and suffering to those conditions as opposed to that due to the compensable back injury.
Mr Mezher continues to take analgesic medication according to his latest statement and the history recorded by Dr Isbister. He is not doing any specific exercise, although has undergone massage treatment at some stage. The significant back surgery undergone in 2017 must be considered, although this appears to have given Mr Mezher limited long term benefit. He has a somewhat restricted life style, divorced and living on his own, and does some of his own cooking, but also relies on neighbours and help from his son. He does not engage in any sporting activity but does some walking, spends time in bed and otherwise sits. He is now almost 70 years old and would have a life expectancy into his eighties.
I think that the figure put forward by the applicant of two thirds of a most extreme case is too high. My view is that Mr Mezher is entitled to compensation for pain and suffering in the range of 40-50% of a most extreme case. The average of those two figures is 45%, which results in a figure of $22,500 compensation for pain and suffering. That is an what will be awarded to Mr Mezher.
SUMMARY
The COD dated 2 December 2009 is rescinded.
The applicant sustained 11% WPI as a result of injury to his lumbar spine on 5 January 2004.
The applicant has received from the respondent compensation for permanent impairment payable to him pursuant to s 66 of the 1987 Act in respect of 11% WPI sustained by him as a result of injury to the lumbar spine on 5 January 2004.
The applicant is entitled to receive from the respondent compensation for pain and suffering from that impairment pursuant to the former s 67 of the 1987 Act of 45% of a most extreme case.
The respondent is to pay to the applicant $22,500 compensation for pain and suffering as a result of injury to the lumbar spine on 5 January 2004.
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