Papera v Equity Transport Group Pty Ltd - [2022] NSWPIC 421

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Papera v Equity Transport Group Pty Ltd [2022] NSWPIC 421
APPLICANT:	Miranda Papera
RESPONDENT:	Equity Transport Group Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	28 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant made a claim for lump sum compensation in respect of the left upper extremity and scarring; respondent submitted that she was not entitled to make a further claim as that would contravene the provisions under section 66(1A) of the Workers Compensation Act 1987 and 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held — the applicant had amended her claim made in 2020 and this claim was not a second claim and that it was in the interests of justice to exercise the discretion under s328(1A) of the 1998 Act to refer the matter for further assessment.
DETERMINATIONS MADE:	The Commission determines: 1. The matter is referred to a Medical Assessor for further assessment of permanent impairment. 2. Matter to be set down for a telephone conference in relation to any further examinations by an Independent Medical Examiner prior to the matter being further assessed by a Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

The applicant, Miranda Papera, (the applicant) was employed by Equity Transport Group Pty Ltd (the respondent) as an Operations Supervisor. The respondent was insured by Employers Mutual Limited (the insurer) at the relevant time.
The applicant made a claim in these proceedings in the Personal Injury Commission (the Commission) for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 19% whole person impairment (WPI) of the left upper extremity and scarring (TEMSKI) as a result of the injury on 10 August 2019. The applicant has alleged that in the course of her employment on 10 August 2019, she injured her left shoulder and left elbow.
The respondent issued a s 78 Notice dated 2 September 2021 disputing the claim for permanent impairment on the basis that the applicant was not entitled to make a further claim for permanent impairment compensation as to do so contravenes the legislative provisions contained in s 66(1A) of the 1987 Act and s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

HISTORY OF THE MATTER AND PRIOR PROCEEDINGS

Following the injury on 10 August 2019, the applicant made a claim for weekly payments and medical treatment.
In a Certificate of Capacity dated 14 August 2019 Dr Balasingham, general practitioner (GP) made a diagnosis of “Left shoulder injury, Left upper arm injury, Left forearm injury, Left elbow injury, Bilateral knee injury, Neck injury” as a result of the injury on 10 August 2019.
In an Incident Report dated 16 August 2019, the applicant described her injuries on
10 August 2019 as “left arm, back shoulder and both knees”.
In a referral to Dr Adrian Low, orthopaedic surgeon, dated 9 September 2019
Dr Balasingham noted that the applicant had slipped and fallen on the left/right…

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 421
Decision Date: 28 July 2022

CaseChat Overview and Summary

In the case of Papera v Equity Transport Group Pty Ltd, the applicant, Papera, sought a lump sum compensation for injuries to the left upper extremity and scarring. The respondent, Equity Transport Group, argued that Papera was not entitled to make a further claim, as it would contravene the provisions of section 66(1A) of the Workers Compensation Act 1987 and section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The legal issues before the court were whether Papera's amended claim constituted a second claim, and if the court should exercise its discretion under section 328(1A) of the 1998 Act to refer the matter for further assessment.

The Court of Appeal, consisting of Basten JA and Leeming JA, decided that the applicant had amended her claim made in 2020, and this claim was not a second claim. The court found that it was in the interests of justice to exercise the discretion under section 328(1A) of the 1998 Act to refer the matter for further assessment. Basten JA granted leave to appeal for two limited purposes: to set aside the decision of the arbitrator, and to remit the matter with a direction that any further referral to an AMS should identify the left wrist as an affected body part. The court did not decide whether there was error by the MAP or by Adamson J. The court referred to the principles discussed in Target Australia v Mansour, Read v Liverpool City Council, and Milosavljevic v Medina Property Services Pty Ltd, which established that s 329 of the 1998 Act is in broad unlimited terms without any need for preconditions to be satisfied before it can be used.

The court's reasoning was based on the principles stated in the cited cases, and the fact that there was no relevant limitation of the terms of referral by the Registrar’s delegate, unlike in Skates. The court considered it necessary to determine the matter on the basis of the principles stated in detail above, as applied to the relevantly different terms in which the Registrar’s delegate referred the dispute for assessment. The court confirmed that the Arbitrator’s referral for further assessment was subject to it being to an AMS rather than an Appeal Panel. The court concluded that whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission’s jurisdictional limits.

The final orders of the court were that leave to appeal was refused for the most part, but granted for two limited purposes. The decision of the arbitrator was to be set aside, and the matter was to be remitted with a direction that any further referral to an AMS should identify the left wrist as an affected body part.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the Court of Appeal, Basten JA and Leeming JA by majority, refused leave to appeal from the decision of Adamson J, with the exception of granting leave to appeal for two limited purposes. Basten JA at [38] said:“Leave should be granted for two limited purposes. The first is to make an order setting aside the decision of the arbitrator, so as to permit further steps to be taken in the Commission. The second is to remit the matter with a direction that any further referral to be made to an AMS should identify the left wrist as an affected body part. That is appropriate because it is likely that the Appeal Panel took a stricter view of its function, which did not allow it to extend the scope of the assessment required by the Registrar’s referral, even with consent of both parties. It is not necessary to determine whether it was correct in that regard, because there is no challenge to the primary judge’s finding that led to the setting aside of its decision…” (emphasis added) Because the Court of Appeal refused leave to appeal (except to a limited extent related to the insurer’s consent and parties’ agreement regarding the left wrist), it therefore did not decide whether there was error by the MAP or indeed, by Adamson J. Therefore it is necessary for the purposes of the present hearing to determine this matter on the basis of the principles stated in detail above, as applied to the relevantly different terms (as discussed in detail above) in which the Registrar’s delegate referred the dispute for assessment. The fact is that unlike in Skates, there was no relevant limitation of the terms of referral by the Registrar’s delegate, and no “terms of the claimant’s own Application to Resolve a Dispute which contained the limitation” (applying the test used by Adamson J at [69]). For the purpose of resolving the present application under s 329, relevant principles have been discussed in the following cases. In Target Australia v Mansour [2006] NSWWCCPD 286; 6DDCR 440 (Mansour) Roche DP said at [68] that s 329 of the 1998 Act “is in broad unlimited terms without any need for preconditions to be satisfied before it can be used”. He said that a referral pursuant to s 329 must be to an AMS, not to an Appeal Panel, but it need not be the original AMS (at [66]). He rejected an argument of the employer, that if a worker was dissatisfied with a review conducted by an Appeal Panel, the only redress was through the Supreme Court (at [67]). The Arbitrator’s referral for further assessment was, subject to it being to an AMS rather than an Appeal Panel, confirmed. In Read v Liverpool City Council [2007] NSWSC 320 Malpass AsJ said at [27] with reference to s 329 of the 1998 Act:“... it may be that s 329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment.” In Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 Roche DP considered the circumstances in which a matter would be referred to an AMS for further assessment under s 329(1)(b) of the 1998 Act. Roche DP referred to his decision in Mansour and noted at [58] that s 329 was in “broad unlimited terms” and wrote: “c. …that is not to say that the section stands outside the terms of the Workers Compensation Acts. It doesn’t, and it must be read in the context of that legislation. There is nothing to indicate that the legislature intended that section 329 could be used in an unrestrained or unlimited way regardless of the Commission’s previous orders or determinations. The exact scope of section 329 must be determined on a case-by-case basis;d. Malpass AsJ may well be correct in stating that section 329 can be used where no grounds of appeal under section 327 are made out, but “the dictates of justice require a further referral for assessment”. Whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission’s jurisdictional limits; …f. I agree that the fact that a matter has previously been referred to an AMS does not of itself prevent a further referral, but there are other factors relevant in the present case that do prevent a further referral;”

Ratio Decidendi

Legal Principle Established

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