Roach v Teldraw Pty Ltd - [2023] NSWPIC 445

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roach v Teldraw Pty Ltd [2023] NSWPIC 445
APPLICANT:	David Roach
RESPONDENT:	Teldraw Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	4 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted psychological injury; claim for permanent impairment; applicant assessed by Medical Assessor as having 9% whole person impairment; application for reconsideration of Certificate of Determination; applicant claimed deterioration in psychological condition since the Medical Assessment Certificate; consideration of principles in Samuel v Sebel Furniture Limited; whether discretion in section 57(1) should be exercised; whether new evidence that could not with reasonable diligence have been obtained at the time of the determination; Held – application refused.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s request for reconsideration of the Certificate of Determination dated 1 November 2021 is refused.

STATEMENT OF REASONS

BACKGROUND

The applicant, David Roach, sustained a psychological injury in the course of his employment with the respondent, Teldraw Pty Limited, for which the respondent accepted liability.
On 15 July 2021, Mr Roach commenced proceedings in the Personal Injury Commission (Commission) for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act). He relied on a report of psychiatrist, Dr Glen Smith, who assessed him as having 19% whole person impairment as a result of his injury. The respondent’s independent assessor, Dr Clayton Smith, assessed Mr Roach as having 6% whole person impairment.
The matter was referred to a Medical Assessor, Dr Douglas Andrews, who issued a Medical Assessment Certificate (MAC) on 27 September 2021 assessing Mr Roach as having 9% whole person impairment as a result of his injury.
By a Certificate of Determination (COD) issued on 1 November 2021, the Commission determined that Mr Roach suffered 9% permanent impairment as a result of his psychological injury and that he had no entitlement to lump sum compensation because he did not reach the threshold required by s 65A(3) of the 1987 Act.
By letter to the Commission dated 30 August 2022, Stacks Goudkamp, solicitors for
Mr Roach, requested reconsideration of the MAC on the basis of reports of his treating psychologist, Dr David Gunn, that his condition had since deteriorated. On 1 September 2022, the solicitors withdrew that request.
By letter dated 9 May 2023, Mr Roach’s solicitors again requested reconsideration of the MAC pursuant to s 329 of the Workers Compensation and Workplace Injury Management Act 1998 (1998 Act). They relied on reports from Dr Gunn, treating psychiatrist Dr Augustus Pusic, and Dr Glen Smith that Mr Roach’s condition had deteriorated since the MAC on
27 September 2021.

PROCEDURE BEFORE THE COMMISSION

On 29 May 2023, the respondent filed a written outline of submissions opposing the request for reconsideration.
On 21 June 2023, an outline of written submissions in support of the request was lodged on behalf of Mr Roach.
Parties attended a telephone conference on 6 July 2023 before a different Member, and the matter was set down for a conciliation conference…

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.

Continue reading Roach v Teldraw Pty Ltd

Details

AGLC: Roach v Teldraw Pty Ltd [2023] NSWPIC 445
Case: [2023] NSWPIC 445
Decision Date: 4 September 2023

CaseChat Overview and Summary

The matter before the court involved an applicant, Mr. Roach, who sought reconsideration of a Certificate of Determination issued under the Workers Compensation Act 1987. The dispute centred around the assessment of permanent impairment following an accepted psychological injury, with the Medical Assessor attributing a 9% whole person impairment to the applicant. Mr. Roach contended that his psychological condition had deteriorated since the assessment, warranting a reassessment of the impairment rating. The case was heard and determined by the Workers Compensation Tribunal of Queensland.

The primary legal issues before the court were whether the discretion under section 57(1) of the Workers Compensation Act 1987 should be exercised to permit reconsideration of the Certificate of Determination, and whether the new evidence presented by the applicant constituted information that could not with reasonable diligence have been obtained at the time of the initial determination. The court was required to consider the principles articulated in Samuel v Sebel Furniture Limited and determine whether the new evidence warranted a reassessment of the impairment rating.

The court found that the principles in Samuel v Sebel Furniture Limited required that for the discretion to be exercised in favour of reconsideration, the new evidence must be such that it could not with reasonable diligence have been obtained at the time of the original determination. The applicant's evidence of deterioration in his psychological condition did not meet this threshold. The tribunal concluded that the new evidence was not of such a nature that it could not with reasonable diligence have been obtained at the time of the initial determination. Therefore, the court exercised its discretion not to permit reconsideration of the Certificate of Determination.

Accordingly, the court refused the application for reconsideration of the Certificate of Determination. The tribunal found that the applicant had not provided sufficient grounds for exercising the discretion under section 57(1) of the Workers Compensation Act 1987, and the evidence of deterioration in psychological condition did not meet the required standard for reconsideration. The original determination of 9% whole person impairment remained unchanged.

Orders