Negi v Nass Consulting Pty Ltd (No 2)

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Negi v Nass Consulting Pty Ltd (No 2) [2021] NSWPICPD 9

APPELLANT:

Seema Negi

RESPONDENT:

Nass Consulting Pty Limited

INSURER:

AAI Limited trading as GIO – Agent for the NSW WorkCover Scheme

FILE NUMBER:

A1-4439/17

MEMBER:

Mr P Sweeney

DATE OF MEMBER’S DECISION:

8 September 2020

DATE OF APPEAL DECISION:

27 April 2021

CATCHWORDS:

WORKERS COMPENSATION – admission of additional evidence on appeal – whether exceptional circumstances exist and whether failure to admit new evidence would cause substantial injustice – CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied – alleged error of fact; application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Self-represented

Respondent:

Ms K Balendra, counsel

Hicksons Lawyers

ORDERS MADE ON APPEAL:

1.    The appellant’s application to adduce further evidence on the appeal is refused.

2.    The Arbitrator’s Certificate of Determination dated 8 September 2020, amended on 29 September 2020, is confirmed.

INTRODUCTION AND BACKGROUND

1. This appeal is an appeal from a decision of an Arbitrator dated 8 September 2020, in which the Arbitrator reconsidered his earlier decision in the same matter dated 8 February 2018. In the earlier decision, the Arbitrator found that Ms Seema Negi (the appellant) injured her neck and right shoulder, and suffered an aggravation of a psychological condition as a result of those physical injuries, in an incident in the course of her employment with Nass Consulting Pty Ltd (the respondent) on 30 January 2015. He found, however, that the appellant had recovered from the effects of the injury by 24 May 2017 and awarded her weekly payments and treatment expenses that ceased on that date. The Arbitrator also found that he was not satisfied that the appellant had suffered an injury to her back or her left shoulder in the incident.

2. The appellant’s claim for lump sum compensation was then referred to a medical assessor for assessment of her whole person impairment, who assessed the appellant’s whole person impairment of the right shoulder and cervical spine as 12%.

3. On 16 June 2020, the appellant (through her former legal representatives) lodged an application for reconsideration of the decision. The essential argument put in the application was that the Arbitrator’s finding that the appellant had recovered from the effects of the injury was inconsistent with the conclusive finding by the medical assessor that the appellant had a permanent impairment.

4. The Arbitrator agreed that there was an inconsistency and that this was a proper ground for a reconsideration of his earlier decision. He proceeded to reconsider the matter. In a Certificate of Determination dated 8 September 2020 (which was amended to insert a corrected date on 29 September 2020), the Arbitrator declined to amend the closed period award for weekly payments, but awarded the appellant ongoing treatment expenses pursuant to s 60 of the Workers Compensation Act 1987