| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Papalia v Transom Services Pty Ltd t/as Transom Scaffolding [2024] NSWPIC 617 |
| APPLICANT: | Damien Papalia |
| RESPONDENT: | Transom Services Pty Ltd t/as Transom Scaffolding |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 5 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for reconsideration of a Certificate of Determination issued by the Workers Compensation Commission; consideration of transitional provisions in Personal Injury Commission Act 2020 (PIC Act); clauses 14A, 14D and 14H of Sch 1 to the PIC Act; Dimos v Gordian Runoff Limited distinguished; whether applicant could rely on a body part not previously assessed for the purpose of deterioration; O’Callaghan v Energy World Corporation applied; exercise of discretion to set aside Certificate of Determination; Samuel v Sebel Furniture Limited considered; Held – Certificate of Determination of the Workers Compensation Commission became a decision of the Personal Injury Commission on 1 March 2021; section 57 of the PIC Act accordingly applied; alternatively applicant had an “unexercised right” under clause 14D; body part could not be added for the purpose of deterioration; discretion to rescind certificate declined. |
| DETERMINATIONS MADE: | The Commission determines: 1. The application for reconsideration of the Certificate of Determination dated 21 October 2020 is declined. |
STATEMENT OF REASONS
INTRODUCTION
These proceedings involve, at their essence, questions of statutory interpretation. The questions for interpretation arise out of the commencement Workers Compensation Division of the Personal Injury Commission (Commission) on 1 March 2021, which replaced the Workers Compensation Commission.
The questions also arise out of the amendments made to the workers compensation legislation in 2012, providing that workers were only entitled to make one claim for lump sum compensation and have one assessment of the degree of permanent impairment.
BACKGROUND TO THE CURRENT APPLICATION
The present application before the Commission is for reconsideration of a Certificate of Determination issued by the Workers Compensation Commission. The procedural background to the present application is relevant for the purposes of understanding the issues in dispute presently, as well as a question of statutory interpretation posed by the provisions contained in Div 4 of Sch 1 to the Personal Injury Commission Act 2020 (the PIC Act). This involves consideration of the Application to Resolve a Dispute lodged in the Workers Compensation Commission, and the present application for reconsideration which appears before me as a member of the Commission.
At the outset it is important to recognise that in essence as much as in substance, the workers compensation division of the Commission was intended to operate under model that involved minimal changes from the dispute resolution process adopted by the Workers Compensation Commission. As much is clear from the second reading speech to the Personal Injury Commission Bill 2020:
“Stakeholders strongly preferred a model with minimal changes to current dispute resolution processes and limited disruption to the schemes. The bill adopts this approach by broadly maintaining current workers compensation and motor accident dispute resolution pathways and placing these into specialised workers compensation and motor accident divisions. Importantly, no changes have been made to the underlying substantive law concerning entitlements of injured people to damages or other compensation or assistance under the workers compensation legislation and the motor accident legislation.”
By an Application to Resolve a Dispute (Application) lodged in the Workers Compensation Commission dated 17 June 2020 Mr Damien Papalia (the applicant) commenced proceedings in the Workers Compensation Commission seeking lump sum compensation. His claim was based on a report of A/Prof Cyril Wong dated 25 October 2019,[1] who assessed a total whole person impairment of 25%. The body parts assessed for the purposes of the claim were:
(a) left knee;
(b) right knee;
(c) lumbar spine, and
(d) cervical spine.
[1] Page 23 of the Application.
Injury to the left knee was accepted. A dispute arose as to whether the right knee, lumbar spine, and cervical spine, which were claimed to be consequential conditions, resulted from the accepted left knee injury.[2] That dispute was resolved by consent orders issued by the Workers Compensation Commission dated 15 July 2020. The orders provided:
“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment as a result of injury to the left lower extremity (knee) on 26 July 2018 and conditions in the right lower extremity (knee), lumbar spine and cervical spine consequent upon that injury.
2. The documents to be referred to the AMS are:
(a) the Application to Resolve a Dispute and attachments, and
(b) Reply and attachments.
3. The matter is not suitable for other than face-to-face assessment.”
[2] See s 78 notice dated 21 January 2020, p 9 of the Application.
Mr Papalia was assessed by Dr Neil Berry, in his capacity as an Approved Medical Specialist, in a Medical Assessment Certificate (MAC) dated 16 September 2020. That MAC assessed Mr Papalia as suffering from 12% whole person impairment. The body parts referred were assessed as follows:
(a) cervical spine – 0%;
(b) lumbar spine – 7% (including activities of daily living of 2%);
(c) right lower extremity (knee) – 4%, and
(d) left lower extremity (knee) – 1%.
Neither party appealed against that decision.
The proceedings in the Workers Compensation Commission were resolved by issue of a Certificate of Determination on 21 October 2020, certifying that Mr Papalia suffered from 12% whole person impairment, with an award of lump sum compensation reflecting that assessment. That certificate resolved the proceedings and the dispute between the parties.
Shortly before the resolution of the proceedings in the Workers Compensation Commission, Mr Papalia injured his left shoulder. On 12 October 2020, Mr Papalia was walking when he felt his left knee give way, causing him to fall. He reached out with his left arm, dislocating the left shoulder. This injury eventually led to surgery on 22 December 2021.[3]
[3] The above history is taken from the report of Dr Gothelf dated 26 March 2023.
Mr Papalia commenced proceedings in the Commission making a claim for treatment left shoulder repair surgery. The matter was determined by a different Member. I do not have a copy of that Certificate of Determination before me, but there was no indication from Transom Services Pty Ltd t/as Transom Scaffolding (the respondent) that the history as set out in the applicant’s submissions, on which I have based this aspect of the history, is incorrect. Critical to the present dispute is the determination that as a result of the injury to his left knee on 26 July 2018, the applicant suffered a consequential injury to his left upper extremity (shoulder) on 12 October 2020.
On 18 June 2024, by letter to the respondent and subsequently lodged in the Commission, Mr Papalia sought reconsideration of the Certificate of Determination dated 10 November 2022, to have the Certificate of Determination set aside, and the proceedings restored. The purpose of the application is so that Mr Papalia might appeal against the Medical Assessment Certificate issued on 16 September 2020 on the basis that there had been a deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, pursuant to s 327(3)(a) and/or (b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
It was acknowledged by the respondent that the reference to the certificate dated 10 November 2022 was in error, and should in fact refer to the certificate dated 21 October 2020. I have accordingly proceeded on that basis.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the Certificate of Determination issued by the Workers Compensation Commission dated 21 October 2020 can be set aside, and whether I should exercise my discretion (should I be found to have such a power) to set aside the Certificate.
PROCEDURE BEFORE THE COMMISSION
Due to the nature of the issue in dispute, this matter proceeded in a somewhat different manner to the standard proceedings. The application for reconsideration was made by letter on 18 June 2024. That application included extensive written submissions. The respondent lodged and served written submissions in response on 8 July 2024.
The matter was then listed for teleconference on 5 August 2024. There, I facilitated a discussion about the relevant issues. Understandably, the parties were unable to reach an agreement. The applicant sought an opportunity to provide further written submissions. I issued a Direction of same date, setting down a timetable for the provision of further submissions from both parties: the applicant by 19 August 2024, and the respondent by 2 September 2024.
Subsequently, the applicant sought an extension of time. The above dates were extended by two weeks respectively. Further submissions were received from the applicant.
On 3 September 2024, the applicant sought an oral hearing to supplement the written submissions provided. That request was granted.
An oral hearing proceeded in person on 15 October 2024. Due to the issues raised, the applicant was excused from attending. The applicant was represented by Mr Larry King SC. The respondent was represented by Mr Paul Stockley.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) MAC of Dr Neil Berry, dated 16 September 2020;
(d) Certificates of Determination dated 15 July 20202 and 21 October 2020;
(e) Application for reconsideration dated 18 June 2024;
(f) Response to application for reconsideration dated 8 July 2024, and
(g) Applicant’s submissions in reply dated 3 September 2024.
SUBMISSIONS
I have before me written submissions from both sides, which were supplemented by oral submissions provided during the course of the hearing on 15 October 2024. As the submissions have been provided in writing and the hearing was recorded, I do not intended to set out the parties’ submissions in great detail, but will provide a brief summary of their respective positions on the issues in dispute.
Applicant’s submissions
The applicant points out that the purpose of the application is not to make another claim for lump sump compensation, but for the purposes of a threshold dispute only. This submission is made with reference to Michelle Lizdenis v Central Pty Limited[4] and Marie Galea v Colourwise Nursery (NSW) Pty Ltd.[5] The applicant submits that he is not restricted by the one claim provisions in the legislation.
[4] [2016] NSWWCC 21.
[5] [2019] NSWWCC 362.
The applicant’s submissions set out the history of the proceedings in the Commission, consistent with the background that I have set out above. The applicant relies on the opinion of Dr Gothelf, dated 26 March 2023, who assesses 19% whole person impairment. The applicant then sets out the principles relating to reconsiderations under s 350 of the 1998 Act, which arose out of decisions from the Workers Compensation Commission. The applicant submits that these principles are relevant to s 57 of the PIC Act. The applicant submits that the Commission has a wide discretion to reconsideration previous decisions, awards, orders or determinations.
The applicant goes on to make submissions in support of an exercise of discretion in his favour. The applicant also refers to the “non-assessment of the lower limb condition” with submissions in support referring to mistake on the part of the applicant’s former legal representatives not preventing the exercise of discretion. The applicant’s initial submissions did not refer to the transitional provisions contained in Div 4A of Sch 1 to the PIC Act.
Respondent’s reply
The respondent points out that the applicant is seeking to have the certificate set aside because s 327(7) of the 1998 Act provides that there can be no appeal against a Medical Assessment Certificate once the dispute has been the subject of a determination by a Court or the Commission. The respondent also notes that the applicant incorrectly refers to the wrong Certificate of Determination in its submissions, but the respondent’s submissions deal with the submission as if the right certificate is identified.
The respondent notes that s 350 (and s 378) of the 1998 Act were repealed and replaced with s 57 of the PIC Act. The respondent refers to the transitional provisions, in particular cl 14D of Div 4A to Sch 1 of the PIC Act. The respondent submits that the applicant did not have an unexercised right as at 1 March 2021, with reference to Dimos v Gordian Runoff Limited[6] (Dimos), and a number of decisions of the Commission dealing with similar applications.
[6] [2023] NSWSC 1151.
The respondent submits that on any appeal, the Appeal Panel ought to be confined to body parts which were subject of the initial MAC, with reference to Fabik v State of New South Wales - Department of Education[7] (Fabik). It was identified that the left upper extremity was not previously assessed by the Medical Assessor.
[7] [2022] NSWPIC 103.
Applicant’s further submissions
As set out in the procedural history above, the applicant was granted leave to lodge further written submissions. Those submissions were in reply to the respondent’s submissions.
In those submissions, the applicant concedes that s 57 of the PIC Act is not relevant to the proceedings. The applicant instead relies upon cl 14D of Div 4A of Sch 1 to the PIC Act. The applicant refers to cases cited by the respondent, and in particular with reference to Dimos. The applicant submits that Dimos can be distinguished from the present case, as it concerned a motor accident case, not a workers compensation case. It was submitted that the PIC Act was not intended to change the underlying substantive law, and there is nothing in Dimos that suggests there must be an actual whole person impairment assessment in existence before 1 March 2021.
The applicant refers to Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission,[8] submitting that there is evidence of an increase in the cervical spine, and the consequential shoulder injury which was not previously assessed. The applicant disagrees with the respondent’s contention that only the body parts previously assessed can be the subject of deterioration, but submits that the advent of a distinct consequential injury creates rights that can be exercised.
[8] [2007] NSWCA 149.
Submissions at hearing
During conciliation prior to the commencement of the hearing, I drew the parties’ attention to cl 14H, which I thought might be relevant to one of the issues raised, that is the power of the Commission to exercise functions under the PIC Act to decisions made in the Workers Compensation Commission. I also inquired as to the relevance of O’Callaghan v Energy World Corporation[9] (O’Callaghan), which suggested that the applicant could not, in essence, add a body part in a reconsideration that had not previously been assessed by a Medical Assessor. These issues had previously been raised at the teleconference but had not been the subject of submissions.
[9] [2016] NSWWCCPD 1.
The applicant reiterated that the present case is different from Dimos and the other cases applying that decision, referred to by the respondent. In respect of Riverina Wines, the applicant submits that there is some evidence of a deterioration, which is sufficient to meet the requirements.
The applicant submitted that cl 14H clearly solves a significant part of the difficulty here, and although the clause is subject to the other provisions in Div 4A, there is nothing that takes it out of play. It can coexist according to its terms with the other provisions contained.
The respondent submits that the applicant had no right to bring proceedings before 1 March 2021. The respondent referred to a decision of ADP Nomchong in Secretary, Department of Communities & Justice v Cannell,[10] submitting that it was on all fours of the issue before me.
[10] [2024] NSWPICPD 32.
In order to rely on cl 14D, the applicant has to identify a right to commence proceedings that has been unexercised, and there was no right to proceedings. The shoulder condition was not the subject of the previous dispute, and the determination of injury was made in different proceedings. There’s no dispute for whole person impairment to the shoulder, and a dispute is a touchstone to bring anything before the Commission.
In terms of the discretion, should I be satisfied that I have a power to reconsider the Certificate of Determination, the applicant submits that in respect of the cervical spine, Dr Gothelf does not say anywhere that there has been a deterioration.
In respect of cl 14H, the respondent submits that one can see why it would be included, to allow the enforcement of existing awards. The respondent notes that cl 14H is subject to other provisions in Div 4A.
The respondent also questioned whether an application for reconsideration constitutes the “commencement of proceedings” as defined in cl 14A. The first step is whether there was a right to commence proceedings, then one would consider whether or not the preconditions were satisfied before March 2021.
LEGISLATIVE BACKGROUND
Given the issues raised concern questions of statutory interpretation, as well as factual application of the issues to the legislative framework, it is important to set out some of the relevant legislative provisions that inform this decision.
The application before me has been made to the Commission. It concerns a determination made by the Workers Compensation Commission. Although the initial submissions and application are somewhat confused in what they are seeking (noting that the cover letter indicates that the applicant seeks reconsideration of the MAC of Dr Berry dated 16 September 2020, and the submissions refer to the incorrect Certificate of Determination), taking substance over form, and it is clear what the applicant is seeking. A method to have the Certificate of Determination of the Workers Compensation Commission, dated 21 October 2020 and issued by Arbitrator Michael Wright, set aside, so that he may appeal the MAC of Dr Berry.
There are two potential methodologies for that request (putting aside the question of whether those powers are exercisable by the Commission as constituted). The first is pursuant to repealed provisions of the 1998 Act, namely s 350. That section provided, immediately before its repeal:
“(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not—
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
Section 350(3) is a broad power. The applicant’s first submissions refer to numerous cases that deal with the discretion inherent in the section. Those submissions also refer to s 57 of the PIC Act. That section provides:
“(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division or Police Officer Support Scheme Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.”
It is noted that at the time of the application made to the Commission, the Police Officer Support Scheme Division did not exist. No fundamental change has been made to the power in relation to the Workers Compensation Division.
Apropos of the above section existing in the PIC Act, and no longer existing in the 1998 Act, it is apparent that some statutory functions of the Workers Compensation Commission, as set out in the enabling legislation (largely the 1998 Act) were transferred in function to the PIC Act.
As is necessary when introducing legislation, particularly complex legislation that dissolves one tribunal and replaces it with another, various transitional provisions were enacted in Sch 1 to the PIC Act. The parties’ written submissions discussed those sections in detail, with particular focus on cl 14D, which provides:
“(1) This clause applies in relation to an unexercised right to commence pre-establishment proceedings before an original decision-maker other than a court.
(2) A person who has the unexercised right to commence proceedings may commence the proceedings with the new decision-maker for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates.
(3) The following provisions apply to the commencement of proceedings under this clause—
(a) the new decision-maker has and may exercise all the functions that the original decision-maker would have had in relation to the proceedings if they had been commenced before the establishment day, including any functions relating to the granting of leave or other permission to commence proceedings,
(b) the provisions of any Act, statutory rule or other law, including provisions concerning the time within which to commence the proceedings, that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply,
(c) despite paragraph (b), Division 3.2 of this Act applies to the proceedings, including section 30, but only if—
(i) the proceedings concern a compensation claim within the meaning of Division 3.2, and
(ii) a person with standing to whom section 26(1) applies makes an application to the District Court in accordance with that section.
(4) To avoid doubt, if the District Court remits a matter to which subclause (3)(c) applies to the new decision-maker under section 26, the modifications made by this clause to proceedings, other than subclause (3)(c), continue to apply in relation to the determination of the proceedings.”
Critically, cl 14D(2) provides that the functions exercised by the Workers Compensation Commission can be exercised by the Commission in certain circumstances. Further relevant definitions are provided in cl 14A:
“(1) In this Division—
commence, in relation to proceedings, includes lodge or file an application or a document seeking the exercise of a function.
decision includes a purported decision or a refusal or failure to make a decision.
new decision-maker, in relation to proceedings or an unexercised right, means the person, court or other body given the function, on and from the establishment day, of dealing with the proceedings or the exercise of the right instead of the original decision-maker because of amendments made to the motor accidents legislation or workers compensation legislation.
Example—
Schedule 6 makes amendments to confer or impose functions of the WCC under the workers compensation legislation on the Commission.
original decision-maker, in relation to proceedings or an unexercised right, means the person, court or other body having the function of dealing with the proceedings or the exercise of the right immediately before the establishment day.
…
pre-establishment proceedings means— (b) proceedings that, before the establishment day, were required or permitted under the workers compensation legislation to be dealt with by—(i) the WCC or a member of the WCC, or
(ii) the Registrar of the WCC or a delegate of the Registrar, or
(iii) an approved medical specialist appointed under Chapter 7, Part 7 of the Workplace Injury Management and Workers Compensation Act 1998, including a senior approved medical specialist, or
(iv) an Appeal Panel for a medical assessment constituted under Workplace Injury Management and Workers Compensation Act 1998, or
(v) a mediator appointed under section 318F of the Workplace Injury Management and Workers Compensation Act 1998.
…
proceedings includes an application for, or an appeal against, the exercise of a function.unexercised right means a right, including a right exercisable only with leave or other permission, that—
(a) was available to be exercised immediately before the establishment day, and
(b) had not yet been exercised before that day.
unheard proceedings means pending proceedings that had not been heard or considered before the establishment day.”
Definitions not relevant to the issues in dispute have been omitted.
During the course of the proceedings before me, I drew the parties’ attention to cl 14H, which provides:
“(1) An existing order of an original decision-maker made or issued under the motor accidents legislation or workers compensation legislation is taken, on and from the establishment day, to be an order made by the new decision-maker under the corresponding provision, if any, of this Act or the legislation as amended by this Act.
(2) This clause is subject to the other provisions of this Schedule.
(3) In this clause—
corresponding provision means a provision corresponding, or substantially corresponding, to the provision of the motor accidents legislation or workers compensation legislation under which the existing order was originally made.
existing order of an original decision-maker is an order made or issued by the decision-maker before the establishment day, and includes an order that would have come into effect on or after the establishment day.
order includes a determination, certificate or assessment.”
Although not exercisable for the present purposes, the repealed s 378 of the 1998 Act is relevant to distinguish this case factually from a number of decisions referred to by the parties, and the nature of the application before the Commission.
Section 322A of the 1998 Act limits the number of assessments of the degree of permanent impairment of a worker that can be made:
“(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
Section 322A is relevant because of subsection (4). The only pathway that the applicant can proceed down to pursue his rights (for the purposes of the present dispute, to satisfy the relevant threshold for the purposes of a work injury damages claim) is to lodge an appeal against the MAC pursuant to s 327.
DISCUSSION
The question before me principally is one of statutory interpretation. The starting (and end point) of statutory construction is the text itself.[11] Acts should be read as a whole. A legislative instrument should be construed on the basis that its provisions intend to give effect to harmonious goals.[12]
Clause 14H of Sch 1 to the PIC Act
I will commence by considering the operation of this clause first. It may, as the applicant submitted during the oral hearing, solve a significant part of the difficulty here. Given the way the case proceeded I will also consider the alternative construction as to whether cl 14D applies.
Clause 14H provides for the continuation of existing orders of the Workers Compensation Commission. An “existing order of an original decision-maker” (that is, for present purposes, an order made by an arbitrator of the Workers Compensation Commission) is taken to be, from the establishment day (1 March 2021), an order of the new decision-maker (that is, a member of the Commission) under the corresponding provision.
In my view the text of cl 14H is clear and unambiguous. Decisions of the Workers Compensation Commission that fit within the definition of an “existing order” (cf with “pending” and “part-heard proceedings” contained within Div 4A), became orders of the Commission on and from 1 March 2021.
The purpose of the clause is immediately apparent. On the abolition of the Workers Compensation Commission under cl 3 of Sch 1 to the PIC Act, any order issued by that body would have no effect and unenforceable. The legislation did not attempt to preserve orders made through some mechanism allowing for their continuance as valid orders of an abolished tribunal. The transitional provisions of the PIC Act explicitly operate to make existing orders of the Workers Compensation Commission orders of the Commission from 1 March 2021.
I postulated during the conciliation of this matter that the purpose may be to allow orders for continuing payments to have some effect (such as an ongoing award of weekly payments, or an award for future surgery that had not yet taken place). This, potentially, could be contrasted with orders that finally and fundamentally resolved the dispute that existed between the parties.
The respondent adverted to and relied on that proposition in the oral hearing, suggesting that there is a relevant difference. In the present case, there has been an award of lump sum compensation that total and finally resolved the claim, for 12% whole person impairment and an award of compensation. Presumably the amount of $27,684.58 has been paid, pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act). On some bases one could see how it is arguable that the continuation of the order, to be an order of the Commission (as opposed to an order of the Workers Compensation Commission that has been effected) is otiose.
I am satisfied that in present circumstances that there is still a valid reason for the order of the Workers Compensation Commission to have been made into an order of the Commission by virtue of cl 14H. One such reason is the principles of estoppel. Another such reason is the binding nature of the assessment of permanent impairment, which, at the issue of the MAC (and certified in the Certificate of Determination) was “conclusively presumed to be correct… in any proceedings before a court or the Commission”.
Further, and most importantly, there is nothing in the text of cl 14H to suggest that applies only to orders that have some kind of ongoing effect. The clause concerns existing orders which are specifically defined to be “an order made or issued by the decision-maker before the establishment day, and includes an order that would have come into effect on or after the establishment day”. Here we have an order issued before the establishment day. I have no evidence about when it “came into effect” through the payment of the amount ordered into the account of the applicant. That is not relevant, as the text of the provision makes clear.
It is true, as the respondent pointed out during submissions, that cl 14H is subject to the other provisions in the schedule. The respondent did not point to any provisions that cl 14H must be subject to for present purposes. The submissions of the parties proceeded on the reliance on cl 14D, so it may be that cl 14H should be read subject to that clause.
It is my view that cl 14H is not “subject to” cl 14D to prevent it from having operative effect. Clause 14D grants a right to a person to commence proceedings with the new decision-maker. It does not prevent the exercising of any right, but in fact grants rights to a person to have matters determined according to the provisions “that would have applied to or in respect of the determination of the proceedings”. Importantly, cl 14D(2) contains a discretion through the use of the word “may”. It is my view that both clauses can coexist and can have effect depending on the factual circumstance of the case. A person may wish to rely on cl 14H to have the Commission determine the matter in accordance with the law that exists now. Likewise, a person may identify an unexercised right to commence pre-establishment proceedings and seek to rely on cl 14D. The facts of the case will determine what provision might be relevant and what pathway a person may elect to pursue.
This may seem like a somewhat contradictory, or even impossible position to take, in that proceedings are either to be determined in accordance with the “same functions that could have been exercised by the original decision maker”, or under “the corresponding provision, if any, of this Act or the legislation as amended by this Act”.
However, when one examines the transitional provisions in Sch 1 as a whole, it is my view that they can exist harmoniously consistent with my construction above. Statutory interpretation prefers harmonious goals.[13] My construction of the transitional provisions is as follows.
On 1 March 2021, on the establishment day of the Commission, there were three types of proceedings:
(a) pending proceedings under cl 14B, being part heard proceedings as defined in cl 14A;
(b) pending proceedings under cl 14B, being unheard proceedings as defined in cl 14A, and
(c) resolved proceedings, with an existing order under cl 14H.
Proceedings under (a) and (b) above were dealt with in accordance with cl 14B of the legislation, providing that the new decision-maker (the Commission) would determine the matter exercising “all the functions that the original decision-maker had immediately before the establishment day”. Clause 14D is not relevant here, as the proceedings continued and were determined. There was no unexercised right to consider.
Resolved proceedings under (c) above resulted in the order of the original decision maker (the Workers Compensation Commission) becoming an order made by the new decision-maker (the Commission). On becoming an order of the new decision-maker, the powers “under the corresponding provision, if any, of this Act or the legislation as amended by this Act” began to apply. That includes, for present relevant purposes, s 57 of the PIC Act, which on any view of it must be the “corresponding provision” to s 350(3) of the 1998 Act, as it was immediately before its repeal.
Existing orders of the Workers Compensation Commission were not preserved in any other way. They became orders of the Commission. What was preserved, under sub-div 3, were rights to commence non-court and court proceedings. That is a right to commence proceedings in the Commission, “for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates”. This may be labouring a point that seems obvious, but in my review of the relevant case law there had been no discussion of cl 14H and what it means for decisions made in the Workers Compensation Commission. The focus has been on cl 14D and on the existence of an unexercised right.
The reason why cl 14D has ongoing relevance, and the reasons for the extensive litigation concerning the clause, is due to amendments made to the enabling legislation by the PIC Act. In particular is the repeal of s 378, which granted a reconsideration power to the Registrar (functions largely assumed by the President in the Commission) and the Appeal Panel (functions which still exist). The section relevantly provided:
“(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.”
That section was repealed and was not replaced by a “corresponding provision”, to use the language of cl 14H. The factual circumstances of many of the applications that have been determined by the Commission interpreting the transitional provisions, including those referred to by the respondent and discussed in the oral hearing, rely on the existence of s 378 and require that power to be exercised, as opposed to any other power. Those cases are Kapp v St Josephs Village Limited[14] (Kapp), Baker v Southern Metropolitan Cemeteries Trust[15] (Baker), Barnett v Ingenia Communities Holdings Ltd[16] (Barnett), three decisions of Principal Member Harris.
In all three cases, the MAC had been the subject of an appeal. Due to Sleiman v Gadalla Pty Ltd[17] (Sleiman), there can be only one appeal of a medical assessment. The only power therefore exercisable, where a MAC has been issued, is pursuant to the repealed s 378 of the 1998 Act. Leeming JA described how one might continue to be able to apply for reconsideration under s 378, exercising the transitional provisions, as “not free from difficulty”.
[17] [2021] NSWCA 236.
In the present circumstances, the applicant does not need to rely on s 378 to achieve his broad goals as set out in the application for reconsideration, to prove that he has now reached the relevant threshold for work injury damages. In fact, that power is of no relevance as there has been no MAC issued, and nothing for an appeal panel to reconsider (or the Registrar, as it were). The applicant needs to set aside the Certificate of Determination so that he can have his first (and only) appeal, because s 327(7) stands in the way.
The way that the applicant may pursue that goal is through the exercise of s 57 of the PIC Act. He does not need to rely on s 350(3) as the decision of the Workers Compensation Commission became a decision of the Commission on 1 March 2021. Section 57 provides for a power to reconsider decisions made in the Workers Compensation Division and “rescind, alter or amend any decision previously made or given by the Commission”. The decision of 21 October 2020, made by the Workers Compensation Commission, is a decision of the Commission.
The applicant’s submissions in reply conceded that s 57 of the PIC Act “cannot be used for WCC decisions”, a submission made by the respondent. That may be the case. But the decision under review is no longer a decision of the Workers Compensation Commission. It is a decision of the Commission and one to which s 57 of the PIC Act may apply.
Clause 14D of Sch 1 to the PIC Act
If I am wrong on the above point, it is necessary to determine whether the applicant has an unexercised right to commence proceedings under cl 14D. The case proceeded on both written and oral submissions in this way (acknowledging the discussion of cl 14H that occurred at the oral hearing). Other decisions that the parties relied on in submissions proceeded on the basis that cl 14D was the relevant power by which a certificate of the Workers Compensation Commission could be reconsidered. Other decisions that have considered this issue include Rootsey v Gofurn Pty Limited ATF Gofurn No. 2 Trust[18] and Russo v Work Zone Pty Ltd.[19] These have proceeded on the basis that cl 14D is the relevant power by which the Commission may reconsider a Certificate of Determination of the Workers Compensation Commission, by exercising s 350 of the 1998 Act. This has been stated either overtly or implicitly.
[18] [2022] NSWPIC 303.
[19] [2021] NSWPIC 355.
The above cases, as well as Kapp, Baker and Barnett, all share the commonality that there has already been a Medical Appeal of an issued MAC. In the present case, the applicant has never exercised a right under s 327 of the 1998 Act. That right falls squarely within the definition of “proceedings” in cl 14A, being an appeal against the MAC. However, the present power Mr Papalia seeks that the Commission exercise is s 350(3) of the 1998 Act, to set aside the Certificate of Determination dated 21 October 2020 so that he may pursue an appeal pursuant to s 327. That is because s 327(7) of the 1998 Act stands in the way of any such appeal, because the dispute concerned has been the subject of determination by the Workers Compensation Commission.
The statutory interpretation exercise for the purpose of determining whether Mr Papalia can rely upon cl 14D to open the jurisdiction to set aside the certificate pursuant to s 350 of the 1998 Act (putting aside any discretionary factors, for now), raises two distinct questions. The first is the proceedings that can be identified, and whether they can be “commenced” in accordance with cl 14A. The next question is at what point the unexercised right must accrue, based on Dimos.
Does the applicant have right to commence proceedings?
The respondent raised this issue in oral submissions, questioning whether an application for reconsideration is the commencement of proceedings according to the relevant definitions in cl 14A. That is because cl 14D applies “in relation to an unexercised right to commence pre-establishment proceedings before an original decision-maker other than a court”.
Two specific definitions in cl 14A are critical to the interpretation of the above provision. Commence means “in relation to proceedings, includes lodge or file an application or a document seeking the exercise of a function”. Proceedings means “includes an application for, or an appeal against, the exercise of a function”.
These definitions are in particularly broad terms. Common to both definitions is “the exercise of a function”. The applicant is seeking that the Commission exercise a function granted under s 350 of the 1998 Act. A document was lodged on 18 June 2024 seeking that that function be exercised, through the original written submissions made. The cover letter to that document, dated 17 June 2024, refers to Procedural Direction PIC 7. That Procedural Direction concerns appeals, reviews, reconsiderations and correction of obvious errors in medical disputes. As with some other references made in submissions, I take that to be an error – the relevant Procedural Direction for present purposes is Procedural Direction WC7 – Reconsiderations of decisions of the Commission. More correctly, as cl 14D requires the decision-maker to exercise “all the functions that the original decision-maker would have had”, it is the relevant Practice Direction of the Workers Compensation Commission, being Practice Direction No 17 – reconsideration applications.
Regardless, I am of the view that an application for reconsideration constitutes an application seeking the exercise of a function. The use of the word “commence” does not mean initiating proceedings. Functions can be exercised in proceedings that have already been commenced (or as it is in this case, proceedings that have closed). In relation to the latter, it is of necessity that upon a successful application for reconsideration that the proceedings be restored and the Certificate of Determination be set aside.
Did the applicant have an unexercised right?
Clause 14D applies “in relation to an unexercised right”. That term is defined in cl 14A to be:
“unexercised right means a right, including a right exercisable only with leave or other permission, that—
(a) was available to be exercised immediately before the establishment day, and
(b) had not yet been exercised before that day.”
Thus the unexercised right that applicant relies upon must have been exercisable immediately before 1 March 2021.
This issue has been discussed in a number of cases, most notably being Dimos. That decision, as the applicant points out, concerned the interpretation of cl 14D in the context of the motor accidents division of the Commission. The insurer made an application under s 62 of the Motor Accidents Compensation Act 1999 (MAC Act), being an application for further medical assessment. The reason why the question was relevant is that under the scheme that existed prior to the Commission, reasons were required to be provided for decisions made under s 62. No such obligation arises to decisions made by the Commission.
In Dimos, Schmidt J described the operation of Sch 1 to the PI Act as “intended as it plainly was to ensure ongoing smooth operation of the various statutory schemes for which the Commission is made responsible by the 2020 Act” (at [49]). She went on to suggest that Div 4A is intended to have temporary, rather than permanent effect, when all “existing proceedings” are completed.
The application made in Dimos concerned evidence that existed before 1 March 2021. The evidence was clinical records from 2014, that the insurer had possessed since 2018, long prior to the assessment of the medical dispute. Her Honour held that the application under s 62 of the MAC Act fell within the definition of an unexercised right, because the documents relied upon were possessed by the insurer since 2018, the application had been available to be made before the establishment day, and the application was made after the establishment day[20]. Her Honour went on to say:
“Had the information contained in the 2014 records only come into existence after the establishment date, as the insurer’s s 62 application incorrectly conveyed when it described them to be 2022 documents, its right to make the s 62 application would not have been an ‘unexercised right’. That is because no basis for making that application in respect of such additional information could then have existed before the establishment date.”[21]
[20] At [77].
[21] At [81].
Dimos was applied in Barnett, but on the basis that the parties accepted that it applied. In Baker, the applicant accepted that under cl 14D he could only rely on material available at the establishment dated.[22] In Baker, Principal Member Harris also sets out a useful summary of Dimos at [23]-[31], concluding that:
“I interpret from these paragraphs that the Court accepted the third construction set out at [25], that is that the right is only available to be exercised ‘when the facts underlying an application for referral existed prior to 1 March 2021 and those facts were available to the party’”.
[22] At [37].
It is important that in both Baker and Barnett it was accepted that Dimos applied to the question in the Workers Compensation Division in the same way that it was applied in relation to the Motor Accidents Division. Her Honour adverted to the existence of the other statutory scheme at [72] suggesting that the transitional provisions may have work to do in respect of s 327 of the 1998 Act. In the present case, the applicant suggests that Dimos can be distinguished, as the statutory provisions are not identical nor are the facts in any way similar.
It is with some caution that I accept this assertion. Firstly, as the applicant points out, the schemes are entirely different. Whilst they arguably achieve similar goals (providing compensation entitlements for injured people) they achieve that through entirely distinct mechanisms. Further, the mechanism by which the Commission resolves disputes in each division is harmonised, as far as is possible, but still involves different pathways with different dispute resolution outcomes. For example, causation in workers compensation matters is resolved by a member, whereas causation in motor accidents is determined by medical assessors.
The function sought to be exercised in Dimos is also entirely distinct from that sought to be exercised here. Section 62 of the MAC Act is a referral for further medical assessment, commonly referred to as a “further”. Mr Papalia is seeking a reconsideration of a Certificate of Determination. The underlying purpose of that reconsideration is to appeal on the basis of deterioration. I accept that there are some underlying similarities in the cases, but the entire scheme of s 327 of the 1998 Act, involving an appeal on specific grounds, is fundamentally different to a “further” under s 62 of the MAC Act.
Also distinct is the underlying basis for each application, and the factual circumstances surrounding them. In Dimos, the application under s 62 of the MAC Act concerned clinical notes. In the present case, the application is for reconsideration based on a claim for deterioration.
The factual circumstances that underpin the claim for deterioration are somewhat unusual and makes the interpretation of cl 14D, and the consideration of how and whether Dimos is relevant to the issue, complicated. Mr Papalia relies on a report of Dr Gothelf dated 26 March 2023 to substantiate the claim for deterioration. This is evidence that came into existence after 1 March 2021. Were I to accept Dimos on its face as applicable to the present circumstances, then that would be an end to the application as the evidence did not exist immediately before 1 March 2021.
This matter is complicated by proceedings commenced in the Commission which resulted in a Certificate of Determination dated 10 November 2022. That certificate made a finding of injury to the left upper extremity that occurred on 12 October 2020, consequential upon the accepted left knee injury. Again, this is documentary evidence that existed after 1 March 2021, but made a determination of injury prior to 1 March 2021.
The applicant submits that the preferred view of the legislation is that there is nothing in the PIC Act that in clear terms prevents a worker from proving that there was a deterioration prior to 1 March 2021 by expert or other evidence which comes into existence after that date but fairly speaks at least in part to the period prior to it.
In my view, Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW[23] (Hochbaum), although concerning a different statutory question (s 39 of the 1987 Act), contains relevant guidance. In that case an important distinction was drawn between injury and impairment, as well as between permanent impairment and the degree of permanent impairment. In relation to the former, it was stated:
“Injury and impairment are not necessarily concurrent, and it is well-established that entitlements to compensation such as those created by s 9(1) of the 1987 Act vest upon the occurrence of the injury, even though those entitlements may not be immediately ascertainable.” (at [52])
[23] [2020] NSWCA 113.
Whilst in relation to the distinction between permanent impairment and the degree thereof:
“The date on which an impairment threshold exists or is exceeded is not within the definition of a ‘medical dispute’. That is because the date of impairment (as distinct from injury, and incapacity) is not a question which is relevant to liability to pay compensation under the scheme; as just explained, liability for permanent impairment dates from the injury, regardless of when the degree of impairment is ascertained. The relevant question is simply what degree of permanent impairment results from the injury, and the legislation provides a mechanism (assessment) for answering that question – while it does not for the irrelevant question, when that degree results.”
His Honour Brereton JA went on to say:
“However, none of this detracts from the proposition that there can ultimately be only a single degree of permanent impairment that results from an injury; the contrary view is incongruous with the concept of permanency. If assessment is deferred and there is an improvement in the worker’s condition, it is the lower degree that is the permanent impairment. If there is a deterioration after initial assessment, and a higher degree is substituted on appeal, it is the higher degree of impairment that is the permanent impairment.” (at [56])
It was ultimately accepted that there was no temporal element to s 39(2). That clearly differs from the situation in cl 14D which absolutely involves a temporal question through the definition of unexercised right in cl 14A – the relevant temporal event being 1 March 2021.
However, the discussions about the lack of temporality of the degree of permanent impairment is relevant. The degree of permanent impairment of an injured person can change. What cannot change is the occurrence of an injury. What is relevant to the question before me, based on Hochbaum, is that the date from which the degree of permanent impairment is finally and correctly ascertained is from the date of injury.[24] That includes through the mechanism of an Appeal Panel, which will substitute the decision from the date of the award.
[24] Hochbaum at [57].
As such, the evidence on which the applicant relies, being the report of Dr Gothelf, shows that there was an unexercised right that existed before 1 March 2021, being an option to have a Certificate of Determination set aside to appeal on the basis of deterioration. That right is granted because of the terms of s 327 of the 1998 Act, which allows for an appeal on the basis of deterioration without a time limitation, and the outcome of which will determine the degree of permanent impairment ascertainable from the date of injury, which was prior to 1 March 2021.
The above is not to say that Dimos was incorrectly decided, nor to disagree with the decisions of Principal Member Harris. The former concerned a different statutory scheme and a different factual basis. The latter decisions proceeded on the basis that Dimos applied to the facts present in those cases. Further, in all of those cases the applicant was seeking reconsideration pursuant to s 378 of the 1998 Act, rather than a right of appeal (a right which had been exhausted).
Accordingly, I am satisfied that the alternative argument that cl 14D applies is correct. The applicant had an unexercised right to seek reconsideration of the Certificate of Determination dated 21 October 2020, because he had not yet pursued an appeal on the basis of deterioration. The degree of permanent impairment, once finally determined, will be ascertained from the date of injury, which was prior to 1 March 2021.
The exercise of discretion
I am satisfied, based on the above summary, that the Commission has the jurisdiction to determine the application for reconsideration pursuant to s 57 of the PIC Act. That does not mean that the reconsideration will be granted as of right. Section 57 includes a discretion (through the use of the word “may”).
The applicant’s first submissions set out the principles in relation to discretion. I accept that the discussions in relevant authorities (which I will refer to below) about s 350(3) of the 1998 Act apply to s 57 of the PIC Act. The most commonly cited authority setting out the relevant principles is Samuel v Sebel Furniture Limited[25] (Samuel), per ADP Roche at [58]. It is worth setting out in full:
[25] [2006] NSWWCCPD 141.
“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) 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).” (with full citations omitted).
Samuel has been discussed and applied in the Supreme Court, in judicial review proceedings, on a number of occasions, including Martinovic v Workers Compensation Commission of New South Wales & Ors[26], where Adams J provides an extensive discussion at [91]-[100].
[26] [2019] NSWSC 1532.
It is clear that the Commission has a wide discretion to reconsider a matter previously dealt with, including to rescind a decision previously made. The applicant is seeking that the Certificate of Determination dated 21 October 2020 be rescinded.
Delay
Delay is a relevant factor (point 3 in Samuel, above). In this case delay is a somewhat unusual consideration, given the purpose of the application for reconsideration. The Certificate of Determination sought to be rescinded is now over four years old, which represents a substantial delays since the proceedings in the Workers Compensation Commission were resolved.
However, the purpose of the application is to allow the applicant to lodge an appeal on the basis of deterioration. Section 327(5) provides specific time limits for the lodging of appeals on the two “error” grounds in s 327(3). No such time limit applies to s 327(3)(a), being deterioration, and 327(3)(b), being the availability of additional relevant information. In circumstances where no time limit applies, the question of delay becomes less relevant.
On the basis of the above it is my view that delay only becomes relevant at the time that the deterioration becomes apparent. This is from the date of the report of Dr Gothelf, relied upon by the applicant, being 26 March 2023. The applicant first served this report on the respondent on 9 April 2024, over one year after obtaining it. That correspondence sought that the respondent concede that Mr Papalia had reached the relevant threshold pursuant to s 151H of the 1987 Act.
That request made by the applicant was rejected by the respondent on 31 May 2024. The applicant then lodged the present application for reconsideration in the Commission on 17 June 2024.
The applicant submits that to the extent that any delay exists, it is minimal, and that the insurer has been aware of the substance of the application for some time and there is no prejudice. The applicant further submits that the period is not material because should the matter proceed for further assessment, that will be conducted based on presentation of Mr Papalia on the day of examination.
I do not accept, at their face, the applicant’s submissions. The delay in this case has not been minimal – it has been, as set out above and on the available evidence before me, a period of over one year. There is real prejudice to the respondent should the proceedings be reopened and the Certificate set aside, as the respondent would now be the potential subject of a claim for work injury damages (should the applicant succeed and show a degree of impairment of over 15%), which is currently not available. The applicant’s last point does not really go to the question of delay but rather the method of assessment.
I do note, however, that it appears that the report of Dr Gothelf was obtained by different lawyers (Law Partners, whereas Mr Papalia is now represented by Turner Freeman). That may be an explanation for the delay in serving the report, and that seems to be borne out by the applicant’s submissions going to mistake (a separate point made under Samuel). I accept that the applicant having to seek alternative legal representation, and the complications that that may entail, goes some way to explaining the delay in serving the report of Dr Gothelf and bringing the present proceedings before the Commission.
Having considered all of the factors above, the question of delay in this matter is finely balanced and does not suggest one way or another what the decision on discretion should be.
Public interest that litigation should not proceed indefinitely
The above criterion as set out in Samuel arises from Hilliger v Hilliger,[27] in which Street CJ stated:
“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.” (Emphasis added.)
[27] (1952) 52 SR (NSW) 105.
The italicised part of the quote above is particularly relevant for an application such as this. Whilst the legislature brought about a significant restriction on proceedings for lump sum compensation in 2012, by the introduction of s 322A of the 1998 Act and s 66(1A) of the 1987 Act, no amendment was made to s 327. In fact, s 322A(4) explicitly excludes s 327 from its operation. It is likely that this is because an appeal (by way of the “error” grounds) involves an assessment of the degree of permanent impairment. Regardless, s 327, including the deterioration ground, are not caught by s 322A. If the legislature wished to prevent a right of appeal on the basis of deterioration, they could have done so.
I accept that the principle that litigation should not proceed indefinitely is an important one. That must be weighed against the right of the applicant to pursue a singular appeal (see Sleiman v Gadalla Pty Ltd.[28]
[28] [2021] NSWCA 236.
It is particularly relevant in the present case that the applicant has not previously pursued an appeal, both for the purposes of whether he had an unexercised right, as above, and for the purpose of the discretion. This distinguishing factor takes the case outside of similar disputes determined in the Commission, including Russo v Work Zone Pty Ltd[29] and Rootsey v Gofurn Pty Limited ATF Gofurn No. 2 Trust.[30]
[29] [2021] NSWPIC 355.
[30] [2022] NSWPIC 303.
In my view this factor does not weight against the application, as it may do in other cases.
Anshun estoppel
I do not intend to set out the principles applying to estoppel in the present case. They have been well settled and explained elsewhere, including a relevant discussion about Anshun in reconsiderations in Secretary, Department of Communities & Justice v Cannell[31] at
[400]-[420].[31] [2024] NSWPICPD 32.
In the present circumstances, I am satisfied that Anshun does not apply, as the applicant has not unreasonably refrained from pursuing his claim in the original proceedings. That is in relation to the evidence of deterioration in the body parts assessed, as well as the consequential injury suffered to the left shoulder (which I will discuss below).
Mistake or oversight of legal advisor
The applicant’s submissions traverse this ground, noting that the matters in Samuel are not determinative but matters of consideration relevant for the exercise of discretion. I accept that is the case. If the application were solely brought on the basis of a mistake by a legal advisor, that may be relevant. Presently, there are multiple factors as to the brining of this application.
It is not clear to me what “mistake” may have been made by the applicant’s former legal advisors. The submissions advert to instructions to bring “all potential impairment relating to his lower limbs included”. It may be that this should be a reference to the applicant’s left shoulder, which was injured shortly before the proceedings in the Workers Compensation Commission were resolved.
I do not think that the failure to attempt to include a body part, that had only very recently been injured, and likely not yet claimed (or accepted as an injury by the insurer), constitutes a “mistake”.
This factor, as far as I can tell, has no relevance.
The duty to do justice between the parties according to the substantial merits of the case
This is the most relevant factor for consideration of my discretion. In the present case, this goes a number of factors, including the substance of the application to appeal, on the basis of deterioration, as well as the question of what body parts might be the subject of any appeal.
In the proceedings in the Workers Compensation Commission, the dispute regarding the degree of permanent impairment was referred to an Approved Medical Specialist. The orders made by the Arbitrator, on 15 July 2020, were:
“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment as a result of injury to the left lower extremity (knee) on 26 July 2018 and conditions in the right lower extremity (knee), lumbar spine and cervical spine consequent upon that injury.
2. The documents to be referred to the AMS are:
(a) the Application to Resolve a Dispute and attachments, and
(b) Reply and attachments.
3. The matter is not suitable for other than face-to-face assessment.”
The claim in the Commission was based on a report of Dr Wong dated 25 October 2019. That assessment provide for the following:
(a) left knee – 12%;
(b) right knee – 4%;
(c) lumbar spine – 7%;
(d) cervical spine – 5%, and
(e) total whole person impairment – 25%.
The MAC dated 16 September 2020 provided the following assessments:
(a) left knee – 1%;
(b) right knee – 4%;
(c) lumbar spine – 7%;
(d) cervical spine – 0%, and
(e) total whole person impairment – 12%.
It is noted that both Dr Wong and the Medical Assessor attributed activities of daily living to the lumbar spine.
Dr Gothelf’s report dated 26 March 2023 provides:
(a) left knee – 1%;
(b) right knee – 0%;
(c) left shoulder – 8%;
(d) cervical spine – 6%;
(e) lumbar spine 5%;
(f) skin – 0%, and
(g) total whole person impairment – 19%.
There are three points worth nothing about the comparative assessment of Dr Gothelf:
(a) he has included the left shoulder, which was not previously claimed as part of the lump sum claim, and was not assessed by the Medical Assessor;
(b) he has attributed activities of daily living to the cervical spine (but has assessed a higher base impairment than that of the Medical Assessor), and
(c) he has included the skin, albeit at 0%.
As to the last point, I do not think it is of consequence. The applicant has not suggested it should form part of the question to be referred on appeal. The other two points are relevant and inform my decision on discretion.
The first concerns the left shoulder. This did not form part of the proceedings previously. I accept that it has been the subject of a determination by the Commission, thereby providing that the respondent is liable for the injury. That sole factor does not mean that the applicant is entitled to bring a deterioration claim relying on that body part. In that regard, the respondent relied on Fabik v State of New South Wales - Department of Education[32] (Fabik), submitting that on any appeal, the Appeal Panel ought to be confined to the body parts that were subject of the original MAC. As a relevant consequence of that, if the applicant is not able to show deterioration outside of the left shoulder injury, then any appeal should necessarily fail.
[32] [2022] NSWPIC 103.
I would point out that Fabik, like all of the other decisions of the Commission discussed above, the applicant had lodged an appeal that had been determined by an Appeal Panel, prior to his application for reconsideration.
Fabik relied upon the Presidential decision of O’Callaghan. In that case, the applicant was referred for an assessment of the lumbar spine (and coccyx). The applicant sought to appeal the assessment on the basis of deterioration, on the basis of her cervical spine (which had not been referred for assessment, by agreement of the parties). At [71]-[72], Acting President Roche stated:
“The appeal available in s 327 is against ‘a medical assessment under this Part’. That is, it is an appeal against the medical assessment made by the AMS under Pt 7 of the 1998 Act. The only medical assessment made by Dr Ho was in respect of the permanent impairment resulting from the injury to Ms O’Callaghan’s lumbar spine (as noted earlier, it seems to have been accepted without challenge that the referral of the lumbar spine included the sacro coccygeal spine).
As Dr Ho was not asked to do so, it was not open to him to assess any other body part (Aircons). It follows that it is not open to use s 327(3)(a) to appeal against an assessment that Dr Ho did not make, that is, an assessment of whole person impairment as a result of injury to the cervical spine. As the respondent submitted, s 327 does not contemplate a situation where a worker can continue to bring claims, under the guise of an appeal, for a deterioration in respect of parts of the body that were not previously the subject of a dispute or an assessment by an AMS.”
The reference in the above quote to Aircons is the case of Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW and Anor.[33] Aircons did not concern a question of deterioration. The issue in that case was whether an Approved Medical Specialist had gone outside of the terms of the referral, which was for scarring and skin discolouration only, by assessing “RSD/causalgia”.
[33] [2006] NSWSC 322.
The critical parts of the reasoning in Aircons are from [20]-[22]. Section 325 of the 1998 Act requires a Medical Assessor to give a certificate as to the matters referred for assessment. It was said that “It is significant that the provision appears to distinguish between ‘a medical dispute’ and ‘the matters referred for assessment’.” His Honour Malpass J went on to say: “I am satisfied that the medical assessment certificate given by Dr Fry contains demonstrable error. He has addressed matters other than those referred to him for assessment. He has not given a certificate as to the matters referred for assessment.”
O’Callaghan has consistently been applied by the Commission and the Workers Compensation Commission before it. Member Isaksen referred to some of those authorities in Fabik. In Russo, the applicant sought to argue that O’Callaghan was wrongly decided. That was not argued before me explicitly. The applicant submitted that if “the Respondent’s submissions is to be read as putting that because the Applicant’s upper extremity percentage WPI brought about by his shoulder injury was not dealt with in the MAC, with all respect that view is plainly unacceptable”. The applicant went on to submit that the advent of a distinct consequential injury creates that can be exercised. It is not clear what those rights are, particularly in the light of s 322A that does significant work to extinguish any right to ongoing and further claims for lump sum compensation. Certainly, an applicant has a right to bring a claim for a consequential condition to the Commission in relation to certain types of compensation. Because of s 322A of the 1998 Act and s 66(1A) of the 1987 Act, that does not extend to lump sum compensation, where a MAC has issued. That is because an applicant is only entitled to bring one claim and have one MAC.
In Russo, Member Sweeney (as he then was) rejected an argument that O’Callaghan had been wrongly decided. No such argument of substance has been put before me, only that the respondent’s view, in reliance on Fabik (which relied on O’Callaghan) was “plainly unacceptable”.
Certainly there has been significant advances in caselaw since O’Callaghan. Member Sweeney referred to such, most relevantly being Skates v Hills Industries Ltd[34] (Skates). Skates concerned the nature of a medical dispute. Leeming JA stated:
“The starting point is a “medical dispute”. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a “dispute between a claimant and the person on whom a claim is made” about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.” (at [44])
[34] [2021] NSWCA 142.
He went on to describe how the dispute is determined:
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
In the present case, the medical dispute between the parties was crystallised in the proceedings in the Workers Compensation Commission. Those proceedings did not involve a dispute as to permanent impairment of the left shoulder. Later proceedings in the Commission involved a dispute as to liability of the left shoulder, which was found attributable to the respondent. Those proceedings concerned a claim for medical expenses.
At no point have the present proceedings involved a claim for lump sum compensation to the left shoulder. The terms of the medical dispute that were to be answered by the Medical Assessor were as agreed by the Certificate of Determination dated 15 July 2020. Any appeal must lie from that medical assessment, the assessment of which resulted from the medical dispute. This is consistent with the reasoning in O’Callaghan.
The only relevant difference here is that there has been a specific finding of injury by the Commission in different proceedings. I do not see how that means O’Callaghan was wrongly decided or that I can depart from it. It may be that further consideration needs to be given to O’Callaghan. I do not believe it appropriate that I make such a determination.
The ultimate outcome in Russo was a declinature to set reconsider the Certificate of Determination, and the application being dismissed. The same conclusion was reached in Fabik.
If the application were limited to the inclusion of the left shoulder only, that would be the end of the application and I would decline to set aside the certificate. However, the applicant’s medical evidence also includes the cervical spine, which was previously assessed at 0% by the Medical Assessor, and now is assessed at 6%.
The leading authority on deterioration is Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors[35] (Riverina Wines). Campbell JA construed deterioration as thus:
“‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.” (at [94])
[35] [2007] NSWCA 149.
Handley JA agreed with Campbell JA’s construction of deterioration as “an inherently relational concept” (at [120]). Hodgson JA agreed with the orders of Campbell JA and his reasons, but added the following relevant comment:
“Although the existence of a MAC certifying nil impairment and a later medical report evidencing some impairment is some evidence of deterioration resulting in an increase in the degree of impairment, this does not mean that a Registrar faced with such material would necessarily be satisfied that the ground in s.327(3)(a) existed. If the later medical report is from a doctor who gave an earlier report to similar effect, with which the MAC conflicted, the Registrar could well take the view that there was merely an attempt being made to avoid the conclusive effect of the MAC, and that there was no sufficiently realistic prospect of the ground (deterioration) being made out to warrant the appeal proceeding.” (at [3])
The respondent made a number of points about the deterioration. The first is that you can’t bring back the same evidence, consistent with Handley JA above. The second was that nowhere does Dr Gothelf express that there has been a deterioration – he simply assesses impairment.
In respect of the latter point, I do not accept that it is incumbent upon an independent medical expert, in a report, to state that there has been deterioration of the worker’s condition in order to satisfy the requirements of s 327(3)(a). That is because it is, as per Riverina Wines, an inherently relational question. Evidence of an increase in impairment is evidence of deterioration. Whether or not the President will accept that as a ground for appeal in accordance with the requirements of s 327(4), is a separate question. However, per Hodgson JA, an increase in impairment, of itself, may be simply an attempt to avoid the conclusive effect of the MAC.
The original assessment of the cervical spine, provided by Dr Wong in 2019, is as follows:
“The cervical spine had normal alignment. There was tenderness at paravertebral muscle on the right side. There was no muscle guarding. The cervical spine had normal flexion, extension and rotations. Lateral flexion to the right was normal and lateral flexion to the left was restricted to 1/3 normal indicating asymmetry motion. He has nonverifiable radicular complaints to the anterolateral aspect of the right upper extremity as described. He complained of numbness at the whole of the right middle and ring fingers and at the lateral aspect of the right arm.
…
The cervical spine was assessed as DRE II 5% WPI based on asymmetry motion and nonverifiable radicular complaints down the right upper extremity. There was complaint of numbness at the right arm and fingers. However, there was no supporting imaging evidence for nerve root compression at these dermatomes or other criteria to make the diagnosis of radiculopathy.”[36]
[36] Page 30 of the Application.
The assessment of the Medical Assessor is as follows:
“The cervical spine should be assessed under the DRE methods and I refer you to the AMA 5th Edition of the Guides to the Evaluation of Permanent Impairment, Chapter 15, Table 15-5 on Page 392. The claimant has irritation and pain on movement but there is no evidence of referred symptoms into either upper extremity. There is no muscle spasm and no muscle guarding and no evidence of dsymetria [sic]. I would therefore place Mr Papalia in DRE Category I which is a 0% Whole Person Impairment.”
The assessment of Dr Gothelf is as follows:
“The cervical posture was normal. There was positive reported tenderness to palpation of the neck spinous processes or paraspinal muscles. There was no visible or palpable deformity in the neck region. There was no observed muscle spasm or guarding. Cervical movement was a fraction of the normal range of motion of full cervical extension, full flexion, half full right rotation, three quarters full left rotation, half full right lateral flexion, and three quarters full left lateral flexion. There was positive asymmetrical loss of motion.”
It should also be noted that Dr Gothelf attributed loss of activities of daily living to the cervical spine, whereas it had previously been attributed to the lumbar spine. It can only be attributed to one part of the spine, per cl 4.36 of the NSW workers compensation guidelines for the evaluation of permanent impairment, 4th edition.
As a comparative, relational exercise, Dr Wong found diagnosis-related estimate (DRE) II on the basis of asymmetry of motion. The Medical Assessor assessed DRE I in the absence of dysmetria (asymmetry of motion). Dr Gothelf found DRE II on the basis of positive asymmetrical loss of motion.
Considering what Hodgson JA said in Riverina Wines, based on the facts before me, the reports of Dr Wong and Dr Gothelf are to “similar effect” (if not identical in the basis for the assessment, being asymmetry of motion in the cervical spine). In between those reports is the MAC which found DRE I. Whilst there has been an apparent increase in the degree of permanent impairment of the neck, it could be argued that the application is merely an attempt being made to avoid the conclusive effect of the MAC.
The above conclusion would be different if the applicant now had evidence of a higher DRE category, or a change in his condition. On the evidence before me, Mr Papalia has presented on different days to difference medical experts with different presentation.
I would also note that when one looks at the report of Dr Gothelf as a whole, the left lower extremity remains the same and the right lower extremity has improved since the MAC. The applicant’s whole person impairment has increased, but if the left shoulder is removed (which I have discussed above, consistent with O’Callaghan), the degree of whole person impairment assessed by Dr Gothelf is in fact identical to that in the MAC, being 12%.
The above factors weigh against my discretion to set aside the Certificate of Determination.
CONCLUSION
Based on my analysis of the relevant transitional provisions, I am satisfied that the Commission has power to reconsider the Certificate of Determination dated 21 October 2020, as on 1 March 2021 it became a decision of the Commission. Alternatively, the applicant had an unexercised right immediately prior to 1 March 2021, being the right to lodge an appeal against the MAC issued on 10 September 2020.
Having considered the discretionary factors, consistent with my analysis above, I am not satisfied that the applicant has shown evidence of a deterioration in his condition. He is not entitled to rely on the left shoulder as part of the claim for deterioration, due to O’Callaghan. The remainder of the claim shows evidence that the degree of permanent impairment is the same as previously assessed in the MAC. The assessment of the cervical spine, which I accept is different to that assessed in the MAC, is to “similar effect” as the assessment on which the claim was previously based.
Accordingly, I decline to set aside the Certificate of Determination dated 21 October 2020.
- AGLC
- Papalia v Transom Services Pty Ltd t/as Transom Scaffolding [2024] NSWPIC 617
- Case
- [2024] NSWPIC 617
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the applicability of the transitional provisions in the PIC Act to the Certificate of Determination, the interpretation of clauses 14A, 14D, and 14H of Schedule 1 to the PIC Act, and whether the applicant could rely on a body part not previously assessed for the purpose of deterioration. The court had to consider the precedents set by Dimos v Gordian Runoff Limited and O’Callaghan v Energy World Corporation in determining the scope of the transitional provisions and the ability to add a new body part for deterioration.
The court found that the Certificate of Determination of the Workers Compensation Commission became a decision of the Personal Injury Commission on 1 March 2021, triggering the application of section 57 of the PIC Act. Alternatively, the applicant had an "unexercised right" under clause 14D of the PIC Act. However, the court held that the body part could not be added for the purpose of deterioration. The exercise of the discretion to set aside the Certificate of Determination was declined, with the court finding no basis to alter the original determination. The matter was resolved in accordance with Samuel v Sebel Furniture Limited, affirming the applicant's inability to rely on an unassessed body part for the purpose of deterioration.
ORDERS:
The court declined the application for reconsideration of the Certificate of Determination. The Certificate of Determination remains in effect, and no further action will be taken regarding the applicant's claim for additional compensation based on the unassessed body part.
Orders
Orders of the court
includes a purported decision or a refusal or failure to make a decision.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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