Myers v Andrew Miedecke Motors Pty Ltd
[2023] NSWPIC 427
•23 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Myers v Andrew Miedecke Motors Pty Ltd [2023] NSWPIC 427 |
| APPLICANT: | Brett Anthony Myers |
| RESPONDENT: | Andrew Miedecke Motors Pty Limited |
| Member: | Christopher Wood |
| DATE OF DECISION: | 23 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Existing Certificate of Determination (COD) for whole person impairment (WPI) following medical assessment and subsequent appeal upholding medical assessment; applicant had undergone two surgical procedures at time of medical assessment but underwent further surgery following it; application under section 57 of Personal Injury Commission Act2020 for reconsideration to revoke COD regarding original WPI; respondent had the applicant examined for purposes of section 39 of Workers Compensation Act 1987 producing increased WPI; foreshadowed work injury damages claim; worker claims a deterioration of his condition and/or additional relevant information that was not previously available; whether Medical Assessor had regard to alleged risk of future surgery; Held – COD revoked and matter remitted to the President for referral for further medical assessment. |
| determinations made: | The Commission determines: 1. The Certificate of Determination of the applicant’s whole person impairment (WPI) dated 22 July 2020 is revoked. 2. The matter is remitted back to the President for referral to the original Medical Assessor, Dr Murray Hyde-Page or other suitably qualified medical practitioner for further assessment of the applicant’s WPI as a result of injury to his lumbar spine. 3. Notations: The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and supporting material; (b) the Reply and supporting material, and (c) this Determination and reasons. |
STATEMENT OF REASONS
BACKGROUND
Brett Anthony Myers (the applicant) sustained a back injury on 4 July 2017 while loading second-hand red cedar timber onto a truck during the course of his employment with Andrew Miedecke Motors Pty Limited (the respondent).
The injury has significantly impacted the applicant’s life and capacity to work. He has undergone three surgical procedures, the most recent being on 29 October 2021 at the hands of his now treating specialist, Dr Stuart Little. The first two procedures were performed by Dr Michael Edgar.
The significance of the third surgical procedure is that it post-dated a medical assessment (MA) and the subsequent issue of a Certificate of Determination (COD) by the Personal Injury Commission (the Commission) following an appeal from the initial assessment to the medical appeal panel (MAP). The MAP upheld the assessment at first instance by Dr Murray Hyde-Page that the applicant had a 14% whole person impairment (WPI) by reference to his lumbar spine injury.
The applicant, at the request of the respondent’s insurer (GIO), underwent a further medical examination by Dr Powell which led to that practitioner concluding the applicant had a 27% WPI. The implications of such assessment being that the applicant would continue to receive payments of compensation beyond the otherwise specified 260 weeks pursuant to s 39 of the Workers Compensation Act 1987 (the 1987 Act) and also exceeded the level of WPI permitting him to bring a work injury damages claim.
The respondent has made no concessions in relation to the matter and has indicated that the respondent ought bring proceedings in the Commission if he wished to make an application for reconsideration or rectification of the existing medical assessment and COD.
ISSUES FOR DETERMINATION
The Commission is required to determine whether, having regard to the provisions of s 57 of the Personal Injury Commission Act2020 (the PIC Act), it is appropriate to rescind the existing COD pursuant to which the applicant has received benefits on the basis of 14% WPI by reference to various matters which have been set out in Procedural Direction WC7.[1]
[1] Commencing 16 August 2022.
PROCEDURE BEFORE THE COMMISSION
The application was listed before me on 11 July 2023 having been previously discontinued on 26 April 2023. The same procedural difficulties which appeared to drive the earlier discontinuance remained however, by consent to avoid any unnecessary further delay to the applicant’s desire for a reconsideration of the COD, orders were made requiring the applicant to make further submissions pursuant to s 57 of the PIC Act with any right of reply given to the respondent. Those submissions have now been made. I am satisfied that the parties clearly understand the nature of the issues and area of dispute.
SUBMISSIONS
Before turning to each party’s submission, I note that there is little or no contest concerning the course of the applicant’s original injury and treatment.
There is however, disagreement about the availability, timing and implications of the various medical reports which are before the Commission.
While the applicant now proceeds under s 57 of the PIC Act, the submissions made by each party are, for all intents and purposes, a recitation of those submissions made in relation to the applicant’s application for reconsideration under s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The principles are essentially the same.
Applicant’s submissions
The applicant’s solicitors have filed three documents supporting his application all dated 11 July 2023.
The first of these is an amended application referencing matter number W2014/23 (discontinued). It annexes all relevant material including an email from the respondent’s solicitors advising the applicant’s solicitors that:
“We do not consider the letter of 7 December 2022 to warrant any response or concession given the history of the claim. There is no concession the worker has satisfied the relevant threshold to be able to pursue a work injury damages claim.
If the worker wishes to challenge any threshold dispute, he will need to do so in the Commission.”[2][2] There is no elaboration on the aspects of “the history” which prompted this reply.
That email responded to a letter sent by the applicant’s solicitors to GIO in which the solicitors indicated they took the silence in relation to the WPI assessment of 27% by Dr Sheehy, a concession that the applicant had satisfied the threshold described by s 151H of the 1987 Act. Also annexed to the first document constituting the submissions is a notice of claim for work injury damages.[3]
[3] Application to Resolve a Dispute (ARD) page 15.
There are further documents filed, which are in reverse chronological order, evidencing communications between the applicant’s solicitors and GIO pressing for a concession that Dr Sheehy’s opinion gave rise to an acceptance that the respondent agreed that the applicant was a worker for higher needs and exceeds 20% WPI necessarily requiring GIO to continue to make payments of workers compensation beyond the stipulated 260 week period.[4]
[4] relevant to a worker of lesser WPI.
Unsurprisingly, Dr Sheehy’s opinion forms part of the documents on which the applicant relies together with further reports of Dr Nicholas Little, the applicant’s treating surgeon. These documents record the applicant’s presentation before the third procedure surgery and progress with recovery thereafter. The report of 20 December 2021 to the applicant’s general practitioner, Dr Raymond Jones, details what is best described as a mixed outcome from the surgery.
The second document before the Commission is the applicant’s written submissions in support of a reconsideration which had previously been filed with the Commission.
The applicant contends that the third surgery which was “accepted as reasonable and necessary by the respondent is a prima facie deterioration in the applicant’s work condition”. The applicant says that the need for this surgery was not known to him or the medical appeals panel at the time the decision was taken to uphold Dr Murray Hyde-Page’s assessment of 14% WPI.
The other additional information the applicant says is relevant to the decision centres around the report of Dr John Sheehy dated 18 October 2022. He notes the respondent conceded in correspondence dated 23 November 2022 that the applicant worker had met the thresholds for ongoing weekly payments beyond the 260 week payment period. The applicant notes that Dr Sheehy’s assessment is “significantly higher” than the statutory threshold informing a work injury damages claim. The applicant says it was simply not possible this information could have been in the possession of the applicant worker or the decision maker at the time of the initial assessment or on appeal. The applicant’s submissions then go on to address delay, however, it is convenient to note here that the respondent has offered no submissions in relation to delay.
The applicant concludes his submissions dated 2 May 2023 by noting that, based on the reasoning of the Court of Appeal in Sleiman v Gadalla Pty Limited[5] (Sleiman), the only option available to him is reconsideration in accordance with Practice Direction 17 – Reconsideration Applications.
[5] [2021] NSWCA 236 at [95]; an appeal to the very appeal body whose findings inform the COD is not possible.
While the submissions are expressed by reference to s 329, it is common ground that s 57 is the appropriate basis on which the applicant seeks a review.
The final document constituting the applicant’s submissions is his solicitor’s letter dated 11 July 2023 following the telephone conference. It is essentially a recitation of the material previously before the Commission but affirms that the relevant reconsideration power is that available to the Commission pursuant to s 57(1) of the PIC Act and again notes Sleiman negating any proposition of an appeal from the (appeal) findings informing the COD.
The applicant confirms that he seeks a 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. The applicant draws attention to the Commission’s Procedural Direction PIC7 which indicates the respondent had not complied with the procedural direction albeit no submissions are made as to the consequence of such failure to reply.
Respondent’s submissions
The respondent’s submissions are consistent with documents it has previously filed with the Commission. The respondent notes the relevant COD is that dated 22 July 2022 which found the applicant was entitled to receive benefits by reference to 14% WPI resulting from his injury. It agrees that the relevant power to seek reconsideration resides in s 57 of the PIC Act. That statute of itself provides no guidance as to the application of the provision. The applicant says that the principles which apply to s 57(1) of the PIC Act may be addressed by reference to the decision of Acting Deputy President Roche in Samuel v Sebel Furniture Limited[6] (Samuel).
[6] [2006] NSWWCCPD 141.
That decision sets down nine principles which may be relevant to the Commission’s determination involving the matter for reconsideration. The respondent also draws upon a recent decision of Member Perry in Gusavac v GPC Asia Pty Limited.[7]
[7] [2022] NSWPIC 123.
The respondent says the applicant has not provided any substantive submissions in respect of the revocation of the current COD. It relies upon the original assessment by Dr Hyde-Page, the appeals panel decision and the COD. The respondent says that it is not in the public interest to allow the litigation between the parties to be re-opened and the respondent is entitled to have some finality to the matter.
The respondent then engages with the two key basis of the applicant’s submissions; i.e. that there has been a deterioration in the applicant’s condition due to further surgery (the third operation performed by Dr Little) and the availability of fresh evidence.[8] The respondent draws attention to Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of New South Wales[9] which addressed deterioration in a worker’s condition after a MA had taken place. It says based on that decision, in particular the decision of Justice Handley, the relevant point of enquiry in relation to the question of whether a worker’s condition has deteriorated or not is the date of the MA. Focus needs to be given to what has happened since. The respondent says that the question of the likelihood of surgery was extant as at the time of the medical assessment. The respondent submits that the “earliest indication of future surgery followed the applicant’s failed second surgery…”.[10]
[8] Section 3273(a) and s 3273(b) respectively.
[9] [2007] NSWCOA 149.
[10] Page 5 of Submissions, paragraph 34.
The respondent draws on Dr Edgar’s report of 22 January 2019 (following the second surgery) when he records that “it is looking increasingly likely [the applicant] is falling into the classification of failed back surgery syndrome”.
The respondent points to the opinion of Dr Hopcroft, the medico-legal expert relied upon by the applicant, when he records in his report of 6 June 2019 that (amongst other things):
“…and is likely to require further discectomy and possible fusion of the L5 S1 disc space if he is to see any significant improvement in his spinal function and sciatica syndrome”.
Dr Hopcroft went on to say:
“I do not believe he can be classified as having reached maximal medical improvement…”.
The respondent also draws on its medico-legal specialist, Dr Powell, who recorded in his report of 24 October 2019 that the applicant’s prognosis was guarded. His lower back would “remain a source of ongoing symptoms into the future”.
The respondent says that the above doctors’ evidence was available to the Medical Assessor and the appeals panel which then made its findings, albeit that the applicant ultimately underwent a further procedure in the form of L5 S1 lumbar discectomy and fusion. The respondent says that it disputes the proposition that the need for surgery was not known at the different stages of the proceedings leading up to the issue of the COD and the medical evidence provided a clear indication that the applicant’s symptoms were worsening and he may[11] have required further surgery.
[11] Respondent’s emphasis.
Turning to availability of fresh evidence, the respondent says that Dr Sheehy’s report ought be separated out from those from what constitutes fresh evidence. The report was obtained by the respondent for the purposes of determining whether or not the applicant qualified for exemption from the s39 threshold. The respondent says that the purpose of the report is distinct from the initial impairment dispute from the respondent.
The respondent draws attention to DP Roche’s decision in Samuel and a distinction between fresh and more evidence. It suggests that the changes which informed that decision apply equally here and that the likelihood of degeneration was clear with the applicant’s symptoms worsening before the third surgery and that the prospect of such surgery was certainly known to the parties. It refers the medical appeals panel had regard to that possibility and as such the respondent says the original opinion of Dr Murray Hyde-Page is conclusively presumed to be correct and binding.
I again note that the respondent makes no submissions with regard to any delay on the applicant’s part. It says that if the matter is resolved against it, that it ought be returned to Dr Hype-Page for further assessment.
REASONS FOR DECISION
The Commission is able to reconsider a COD involving an assessment of permanent impairment. I note the decision of Harrison AsJ in Sleiman at first instance where she said:
“Finally as set out earlier, there is provision in the legislation for the Commission to reconsider decision which are otherwise final and not subject to appeal. In the event that a person might seek to have such a decision reviewed on the basis of that his or her condition has deteriorated, s350(3) provides a ‘broad’ discretion for which the Commission may reconsider any matter it has dealt with and rescinded or amended: see Martinovich at [91]”.
The decision of the Court of Appeal in Sleiman did not alter those observations.
The ability of the Commission to reconsider a decision is now provided for by s 57 of the PIC Act. A summary of the principles regarding a reconsideration set out in Samuel remain applicable to s 57(1) of the PIC Act,[12] where DP Roche said at [58]:
[12] That decision addressed the now repealed s 350 of the 1998 Act which is similar in its terms to s 57.
“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
The updated WPI following the third surgery is not simply a different opinion being expressed by an expert. Instead, this is a situation where there is new or fresh evidence due to the applicant undergoing lower back surgery after the affirmed MAC of Dr Hyde-Page. On its face it satisfies the test set by O’Meally J in Galea v Ralph Symonds Pty Ltd[13] (Galea) at [201] that:
“...the applicant must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing....and that if believed would be at least a determining factor in the outcome of the case.”
[13] [1989] NSWCC 4; (1089) [1989] NSWCC 4; 5 NSWCCR 192.
The respondent makes play of all relevant facts being known to the Medical Assessor. Essentially saying Dr Hyde-Page and the medical appeals panel took into account the possibility of future surgery and progressive deterioration in making and then upholding a finding of 14% WPI which informed the COD.
The Medical Assessment Certificate dated 19 March 2020 issued by Dr Hyde-Page recorded the applicant as being straightforward and “… there was no suggestion of embellishment or exaggeration”.
Dr Hyde-Page concluded that the applicant had reached maximal medical improvement. I note here that Dr Hopcroft clearly thought otherwise.[14] Dr Hyde-Page was asked to comment upon other medical opinions in the usual way. He notes that Dr Little did not recommended surgery at that time. Dr Hyde-Page addressed the opinion of Dr Powell who had concluded the applicant had 16% WPI.
[14] See above.
Dr Hopcroft is mentioned by Dr Hyde-Page but he does not address Dr Hopcroft’s opinion that the applicant would likely come to further surgery.
It seems to me to be something of a stretch for the respondent to argue that the current COD reflects regard was had or impliedly was had to the likelihood of further surgery. Indeed in making his assessment Dr Hyde-Page expressly acknowledged the treating specialist Dr Edgar’s then opinion that further surgery was not indicated[15]. In these circumstances there is a significant variable between “ongoing progression or deterioration” of the type contemplated by DP Roach in Samuel and the material impact of further surgery carried out following Dr Hyde- Page’s decision.
[15] Pages 2 and 6 of the Medical Assessment Certificate
Although not determinative in the context of the issues the Commission must address it is not without significance that the respondent paid for such surgery and has accepted that the applicant has satisfied the exception pursuant to s 39 of the 1987 Act in so far as ongoing payments of compensation are concerned.
The applicant suffered a severe injury and unfortunately has not responded well to surgical intervention.
The respondent’s own medico-legal specialist has found a significant level of increased impairment from the original assessment. The bold assertion within the respondent’s solicitor’s email to the applicant’s solicitors that no concession will be made in relation to its own MA strikes me as problematic in terms of good claims management and avoidance of adversarial process. Had the third surgery been successful then the respondent would have no doubt taken the benefit of such surgery, if for example the applicant had been more able to return to the workforce or remained at the same level of WPI. The various considerations need to be taken into account under s 57 include the following:
“(a) the objectives of the Commission under s3 and 42 of the PIC Act;
(b) any fresh evidence, additional evidence or substitute evidence that could not have reasonably been obtained prior to the decision and which would likely have led to a different result before the original decision maker;
…
(d) the public interest in finality of litigation; and
…
(f) the interests of justice.”
While I accept that the evidence going to the likelihood of surgery was at best equivocal and appropriately there is public interest in the finality of litigation, there remain overarching considerations of the interest of justice and objects of the Commission. These would not be satisfied by a decision to decline the applicant the opportunity to be reassessed.
There is evidence of a significant material change in the applicant’s condition as a result of him undergoing surgery to his lumbar spine which warrants the Commission exercising its “wide ranging” discretion to revoke the current COD.
I consider that the applicant meets the ninth principle referred to by DP Roche in Samuel, for discretion to be exercised in his favour. Section 354(3) of the 1998 Act has been repealed, but s43(3) of the PIC Act is in the same terms, being:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In my view equity, good conscience and the substantial merits of this dispute permit the applicant to have the COD revoked because of the third surgery which has had potential material impact on his level of WPI.
The current COD is revoked and the matter is remitted to the President for referral of the Applicant for a fresh medical assessment of his WPI by reason of injury to the lumbar spine. If this cannot be conducted by Dr Hyde-Page then other appropriately qualified medical practitioner as may be available.
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