Pollard v Toll Holdings Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Pollard v  Toll Holdings Pty Ltd [2024] NSWPIC 630

APPLICANT:

Christopher Pollard

RESPONDENT:

Toll Holdings Pty Ltd

PRINCIPAL MEMBER:

John Harris

DATE OF DECISION:

11 November 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); applicant sustained laryngeal injury in 2018; claim under section 66 of the 1987 Act for compensation based on nervous system and larynx function referred to two medical assessors; Medical Assessor Burns assessed nervous system and found that breathing dysfunction was due to larynx injury which should be assessed by Medical Assessor Williams; Medical Assessor Williams assessed larynx dysfunction but did not assess breathing defect; appeal filed only against assessment made by Medical Assessor Burns; Medical Appeal Panel dismissed the appeal, finding that error was that Medical Assessor Williams did not undertake the assessment; applicant initially filed further application pursuant to section 329(1)(a) of the 1998 Act alleging error by Medical Assessor Williams and seeking reconsideration of his assessment as an alternative to an appeal; finding that process is one medical assessment, and that applicant has exercised his one appeal against the medical assessment, applicant filed reconsideration application seeking to rely on section 329(1)(b) of the 1998 Act; discussion of authorities; requirement to read section 329(1)(b) contextually; earlier authorities pre-dated commencement of section 322A of the 1998 Act and finding in Sleiman v Gadalla Pty Ltd that applicant has only one appeal; finding that section 329(1)(b) of the 1998 Act not available in present circumstances; discretion to reconsider previous decision; finality of litigation compelling factor when present argument raised and not pressed in previous proceedings; Held – claim for reconsideration dismissed.

DETERMINATIONS MADE:

The Commission determines:

Order

1.     The application to reconsider the decision in Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 530 and to rely on s 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is dismissed.

STATEMENT OF REASONS

BACKGROUND

1. Mr Christopher Pollard (the applicant) was employed by Toll Holdings Pty Ltd (the respondent) and sustained injury on 18 October 2018. The applicant was involved in helicopter underwater escape training when one of the participants panicked and accidentally kicked him in the throat.

2. The applicant seeks a reconsideration of the decision in Pollard v Toll Holdings Pty Ltd.[1] The history of the matter and findings, which are not disputed in this application, are repeated as part of these reasons. However, for the purpose of understanding this application, I will repeat relevant portions of the background from Pollard.

   [1] [2024] NSWPIC 530 (Pollard).

3. The applicant brought proceedings seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).

4. The application was set down before a Personal Injury Commission (Commission) Member who issued consent orders dated 1 November 2023. The orders relevantly provided:

   “The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:

   (a)Date of…