Papalia v Transom Services Pty Ltd t/as Transom Scaffolding

[2024] NSWPIC 617

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

1. 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.

2. 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

1. 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.

2. 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…