Snapes Australia Pty Ltd v Tuliakiono - [2022] NSWPICPD 44

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Snapes Australia Pty Ltd v Tuliakiono [2022] NSWPICPD 44
APPELLANT:	Snapes Australia Pty Ltd
RESPONDENT:	Kelepi Tuliakiono
INSURER:	GIO General Ltd
FILE NUMBER:	A1-W3792/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	15 November 2022
ORDERS MADE ON APPEAL:	1. Leave to appeal an interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
CATCHWORDS:	WORKERS COMPENSATION – leave to appeal an interlocutory decision – s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – remittal of matter to the President for referral to a Medical Assessor to assess whole person impairment in circumstances where it is in contention as to whether the threshold whole person impairment is met – assessment by assessor and relevant accreditation under the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms S Warren, counsel
Hall & Wilcox Lawyers
Respondent:
Mr V Jurisich, counsel
Pasifika Legal
DECISION UNDER APPEAL
MEMBER:	Mr P Young
DATE OF Member’s DECISION:	9 December 2021

INTRODUCTION

This is an appeal from a Certificate of Determination of a Member issued on 9 December 2021.
The original Certificate of Determination was amended pursuant to an application for reconsideration on 22 February 2022.
The appeal concerns whether the Member was correct to remit the matter to the President for referral to a Medical Assessor for assessment of whole person impairment (WPI) in relation to an injury to the left upper extremity (left shoulder) where the highest assessment prepared in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Fourth Edition – reissued 1 March 2021 was not greater than the 10% threshold provided in s 66(1) of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

Mr Tuliakiono, the respondent to this appeal, alleged injury on 26 October 2015 whilst using a pallet jack to move a broken pallet full of goods weighing 580kg. The injury resulted in impairment of the left shoulder, left knee and back.
In the present proceedings he claimed a 20% WPI, and an amount of $48,490 for compensation pursuant to s 66 of the 1987 Act. The WPI was based on an assessment provided by Dr Bodel, who calculated permanent impairment by reference to each of the left upper extremity, the left lower extremity and the lumbar spine.
In prior proceedings numbered 825/19 involving the same parties, Consent Orders were filed. The Orders included the following:
“…
2. Award in favour of the respondent in respect of the alleged injury to the lumbar spine.
3. Award in favour of the respondent in respect of the alleged injury to the left knee.
…
5. Leave to discontinue s 66 claim in respect of the left upper extremity.”
The proceedings before the Member concerned the employer’s (the present appellant’s) argument that the previous Consent Orders estopped the worker…

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] NSWPICPD 44
Decision Date: 15 November 2022

CaseChat Overview and Summary

Snapes Australia Pty Ltd, the appellant, contested the decision of a Member of the Personal Injury Commission (the Commission) to remit the matter to the President for referral to a Medical Assessor to assess the whole person impairment in relation to the left upper extremity of Tuliakiono, the respondent. The dispute was about the contention as to whether the threshold whole person impairment of 11% was met, which was in contention. The dispute was heard in the Personal Injury Commission Appeal Tribunal (the Tribunal) and subsequently in the Court of Appeal of the Supreme Court of New South Wales.

The legal issues in the case were whether the Member had the power to remit the matter to the President for referral to a Medical Assessor to assess the whole person impairment, and whether the report of Dr Dave, who was not a SIRA trained assessor, was admissible as evidence. The appellant argued that the Member had no power to refer a matter to a Medical Assessor where the degree of impairment was under the 11% WPI threshold required in Section 66 of the Workers Compensation Act 1987. The appellant also submitted that Dr Dave was not qualified to assess whole person impairment as he was not a SIRA trained assessor.

The Tribunal found that the Member did have the power to remit the matter to the President for referral to a Medical Assessor to assess the whole person impairment. The Tribunal also found that Dr Dave’s report was admissible as evidence because the appellant had not objected to it at the hearing before the Member. The Tribunal further found that the assessment of whole person impairment was not limited to SIRA trained assessors, and that Dr Dave’s qualifications and experience were sufficient to enable him to provide an assessment of whole person impairment. The Court of Appeal upheld the decision of the Tribunal.

The Court of Appeal found that the Member had the power to remit the matter to the President for referral to a Medical Assessor to assess the whole person impairment, and that the assessment of whole person impairment was not limited to SIRA trained assessors. The Court of Appeal also found that the report of Dr Dave was admissible as evidence, and that the appellant had not established any error in the Member’s assessment of whole person impairment. The Court of Appeal dismissed the appeal and ordered the appellant to pay the respondent’s costs of the appeal.

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

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Ratio Decidendi

Legal Principle Established

In a Direction dated 1 March 2022, following the determination of the reconsideration application, a delegate of the President dissolved the stay of the appeal made on 10 January 2022. The delegate made further directions setting a timetable for the appeal proceedings. Amongst other Directions made, the delegate of the President directed that by 15 March 2022:“the appellant is to file and serve any supplementary submissions it wishes to make. This includes submissions in respect of the transcript and the events since the issuing of the Certificate of Determination dated 9 December 2021, including whether the amendment made to that Certificate of Determination (following reconsideration) affects the Grounds of Appeal lodged on 5 January 2022.” (emphasis added) On 15 March 2022, the appellant lodged supplementary submissions in accordance with this Direction. The supplementary submissions restated the previous submission that the Member “had no cause to make a finding or award in relation to the left shoulder” because the left shoulder injury was not in dispute. In addition the appellant submitted the report of Dr Dave dated 1 July 2021 should be removed from the ARD because:(a) It was not in accordance with Clause 7.3 of the Workers Compensation Guidelines Requirements for Insurers Workers Employers and Stakeholders dated 1 March 2021. (b) Furthermore, the appellant submitted the Member was wrong (“unfounded and misguided”) as to his view (at [16] of the reasons) of Clause 1.40 of the Guidelines to the Evaluation of Permanent Impairment.(c) Dr Dave was not a SIRA trained assessor, he was not qualified to assess whole person impairment. The gravamen of the supplementary and primary submission by the appellant was that once Dr Dave’s report was removed, the only evidence before the Commission Member was the report of Dr Bodel which, so far as the left upper extremity was concerned, provided an assessment of 8% WPI. From this the submission was:“The [Commission] Member does not have power to refer a matter to [a Medical Assessor] where the degree of impairment is under the 11% WPI threshold required in Section 66 of the Workers Compensation Act 1987 ...”[3][3] Supplementary submissions, [16], [19]. The submissions and other documents did not explicitly address the issue identified in bold above (paragraph [19]) and it is not entirely clear that it is the Amended Certificate of Determination: Reconsideration that is the subject of the appeal. However, ss 57(4) and (5) of the Personal Injury Commission Act 2020 (the 2020 Act) provide that the replacement Certificate prevails over any previous certificate. I proceed accordingly. The Statement of Reasons dated 9 December 2021 disposed of the claimed estoppels in relation to the left lower extremity and the lumbar spine. The Member referred the left upper extremity, which was not the subject of any previous finding, to the President for referral to a Medical Assessor for assessment of the whole person impairment attributable to that part of the body.