Parsons v Dell Australia Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Parsons v Dell Australia Pty Ltd [2020] NSWWCCPD 2

APPELLANT:

Jason Parsons

RESPONDENT:

Dell Australia Pty Ltd

INSURER:

AAI Limited trading as GIO – agent for the Workers Compensation Nominal Insurer

FILE NUMBER:

A1-1588/19

SENIOR ARBITRATOR:

Mr G Capel

DATE OF ARBITRATOR’S DECISION:

14 June 2019

DATE OF APPEAL DECISION:

15 January 2020

SUBJECT MATTER OF DECISION:

Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 – the exercise of discretion to reconsider a Certificate of Determination – factors to consider Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 applied; whether error of discretion – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ian Collins Solicitor

Respondent:

Mr A Combe, counsel

Hicksons Lawyers

ORDERS MADE ON APPEAL:

1. The appellant’s application made pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 to adduce further evidence on appeal is refused.

2.    The Certificate of Determination dated 14 June 2019 is confirmed.

INTRODUCTION

1. Mr Jason Parsons (the appellant) brought proceedings by way of a Miscellaneous Application (application for reconsideration), seeking to have a previous Certificate of Determination (COD) dated 3 August 2015 issued by Ms Annette Farrell, Deputy Registrar, in matter no 2703/14 set aside. He also sought a reconsideration of the Medical Appeal Panel’s (MAP) Medical Assessment Certificate (MAC) dated 26 June 2015.

2. The application for reconsideration was allocated to Senior Arbitrator Capel, who issued a direction to the parties to file written submissions, following which he determined the matter on the papers before him. The Senior Arbitrator declined to reconsider the orders made in the COD dated 3 August 2015 and confirmed the COD.

3. The appellant appeals the Senior Arbitrator’s decision.

BACKGROUND

1. The appellant was employed by Dell Australia Pty Ltd (the respondent) as a hardware product specialist. During the course of his employment, the appellant suffered a psychological injury, which was deemed to have occurred on 1 August 2013.

2. In 2014, the appellant commenced proceedings in the Commission (matter no 2703/14) seeking weekly payments, treatment expenses and a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). That matter proceeded to arbitration and the appellant was awarded weekly payments and treatment expenses. The s 66 claim was referred to an Approved Medical Specialist (AMS), Professor Nick Glozier, who issued a MAC certifying the appellant’s whole person impairment (WPI) to be 15%. The respondent appealed to the MAP. The MAP found error in Professor Glozier’s assessment and revoked his MAC. The MAP issued a new MAC dated 26 June 2015 certifying the appellant’s WPI to be 7%. The appellant did not seek judicial review of the MAC dated 26 June 2015.

3. Section 65A(3) of the 1987 Act provides that in order to receive lump sum compensation pursuant to s 66 in…