Pallier v Freight Specialists Pty Limited - [2022] NSWPIC 557

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Pallier v Freight Specialists Pty Limited [2022] NSWPIC 557
APPLICANT:	Michael John Pallier
RESPONDENT:	Freight Specialists Pty Limited
Member:	Karen Garner
DATE OF DECISION:	7 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Reconsideration application; section 57 of the Personal Injury Commission Act 2020; Samuel v Sebel Furniture Limited applied; Held - that application for reconsideration refused.
determinations made:	1. The application for reconsideration of the Certificate of Determination issued on 13 July 2022 is refused.

STATEMENT OF REASONS

BACKGROUND

On 12 October 2021, Mr Pallier (the worker) made a claim for permanent impairment lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) against Freight Specialists Pty Limited (the employer), in respect of 37% whole person impairment (WPI) due to an injury at work on 21 June 2019 when he fell approximately 1.5 m onto a concrete floor.
In a letter dated 14 January 2022, the employer’s solicitor advised that the employer’s insurer would make no offer in response to the claim on the grounds that its specialist, Dr Casikar, considered that the worker’s condition had not reached maximum medical improvement.
On 25 January 2022, the worker filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission), claiming 37% WPI pursuant to s 66 of the 1987 Act, in respect of the worker’s lumbar spine, thoracic spine and scarring (TEMSKI). The worker’s claim was referred to a Medical Assessor (MA).
On 18 March 2022, the MA issued a Medical Assessment Certificate (MAC) which stated an assessment of 35% total WPI which was calculated on the basis of:
(a)    23% for the lumbar spine after a one-tenth deduction for previous injury or pre-existing condition or abnormality;
(b)    15% for the thoracic spine, and
(c)    0% for scarring.
On 11 April 2022, the employer filed an Appeal against the MAC.
On 19 May 2022, the delegate referred the matter back to the MA pursuant to ss 327(6) and 329 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
On 8 June 2022, the MA issued a MAC on further assessment or reconsideration pursuant to s 329 of the 1998 Act, which stated:
“1. The issue has been raised that the compression of the fractured T12 thoracic vertebral body may be 20% compression as opposed to 35% which was selected for calculation of the Thoracic Whole Person Impairment. It is believed more appropriate that this issue should initially be addressed by letter to the Commission for further consideration, since it may no be quite so simple as possibly thought.
2. In the MAC of 10/03/22, the Whole Person Impairment calculated for the thoracic spine was 15%. This depended on the extent of fracture compression identified radiologically. The radiological investigation which was quoted in the MAC to support this assessment was the MRI scan of 10/02/20. This was taken eight months after the original injury. It was considered that at that stage the vertebral fracture would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 557
Decision Date: 7 October 2022

CaseChat Overview and Summary

In Pallier v Freight Specialists Pty Limited, the plaintiff sought reconsideration of a decision regarding his workers' compensation claim against the defendant, Freight Specialists Pty Limited. The dispute was brought before the Personal Injury Commission of New South Wales, which was tasked with determining the merits of the reconsideration application. The primary issue before the court was whether the reconsideration application met the criteria set out in section 57 of the Personal Injury Commission Act 2020, particularly focusing on whether there was new evidence or a significant change in circumstances that warranted a reassessment of the original decision.

The court examined the application in light of the established principles in Samuel v Sebel Furniture Limited, which set a high threshold for successful reconsideration applications. The plaintiff argued that there were new developments in his medical condition that had not been considered in the original decision. However, the court found that the new evidence did not meet the stringent requirements for reconsideration as outlined in the relevant legislation and case law. The plaintiff's medical updates, while unfortunate, did not constitute a significant change in circumstances or new evidence that would fundamentally alter the outcome of the initial decision.

Consequently, the court dismissed the application for reconsideration. It held that the plaintiff had not demonstrated a compelling reason to revisit the original decision, and therefore, the reconsideration application was unsuccessful. The court's decision was grounded in the need to maintain the finality and stability of workers' compensation determinations, ensuring that such decisions are not lightly revisited unless there are truly exceptional circumstances.

Orders