Spokes v Mark Bristow Painting - [2025] NSWPIC 62

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Spokes v Mark Bristow Painting [2025] NSWPIC 62
APPLICANT:	Craig Spokes
RESPONDENT:	Mark Bristow Painting
MEMBER:	John Turner
DATE OF DECISION:	24 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); application for reconsideration of a Certificate of Determination (COD) issued by the former Workers Compensation Commission; exercise of discretion to set aside Certificate of Determination; consideration of sections 6 and 57 of the PIC Act; consideration of the transitional provisions in the PIC Act; clauses 14A, 14D, 14F, and 14H of Schedule 1 to the PIC Act; consideration of sections 319, 326, 327, and 350 of the 1998 Act; Papalia v Transom Services Pty Ltd t/as Transom Scaffolding, Department of Communities & Justice v Cannell, Phan v Elcon Cable Processors, Dimos v Gordian Runoff Limited, Baker v Southern Metropolitan Cemeteries Trust, Petrovic v BC Service No 14 Pty Limited and Ors, Samuel v Sebel Furniture Limited, and Hilliger v Hilliger considered; Held – that the Personal Injury Commission has the power pursuant to section 57 of the PIC Act to reconsider the COD of the former Workers Compensation Commission dated 30 September 2019; that the discretion in section 57 of the PIC Act should be exercised in the applicant’s favour and the COD rescinded to enable an appeal by the applicant of the Medical Assessment Certificate (MAC) pursuant to section 327(3)(a) and/or (b) of the 1998 Act; the Commission orders that the COD issued by the former Workers Compensation Commission dated 30 September 2019 is rescinded pursuant to section 57(1) of the PIC Act; leave is granted to the applicant to file an appeal pursuant to section 327(3)(a) and/or (b) against the MAC dated 27 August 2019 within 28 days.
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination issued by the former Workers Compensation Commission dated 30 September 2019 is rescinded pursuant to s 57(1) of the Personal Injury Commission Act 2020. 2. Leave is granted to the applicant to file an appeal pursuant to s 327(3)(a) and/or (b) against the Medical Assessment Certificate of Dr Meakin dated 27 August 2019 within 28 days. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Craig Spokes, the applicant, seeks to have a Certificate of Determination (COD) issued by the former Workers Compensation Commission (WCC) dated 30 September 2019 rescinded pursuant to either s 57 of the Personal Injury Commission Act 2020 (PIC Act) or in the alternative pursuant to s 350 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) so that he may file an appeal against a Medical Assessment Certificate (MAC) of the Approved Medical Specialist (AMS), Dr Ian Meakin, dated 27 August 2019 pursuant to s 327(3)(a) and s 327(3)(b).
The applicant filed an Application to Resolve a Dispute (ARD) with the then WCC…

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: [2025] NSWPIC 62
Decision Date: 24 February 2025

CaseChat Overview and Summary

The case of Spokes v Mark Bristow Painting involved the applicant seeking reconsideration of a Certificate of Determination (COD) issued by the former Workers Compensation Commission. The applicant argued that the Personal Injury Commission (PIC) had the authority to reconsider the COD and that the discretion to set it aside should be exercised in their favour. The applicant sought to appeal a Medical Assessment Certificate (MAC) issued prior to the establishment of the PIC. The court had to determine whether the PIC had the power to reconsider the COD, whether the discretion should be exercised in the applicant's favour, and whether the applicant had an unexercised right to appeal the MAC.

The legal issues centred around the interpretation of sections 6 and 57 of the Personal Injury Commission Act 2020 (PIC Act), as well as the transitional provisions in the PIC Act. Specifically, the court needed to consider clauses 14A, 14D, 14F, and 14H of Schedule 1 to the PIC Act, along with sections 319, 326, 327, and 350 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The applicant argued that the PIC had the power to reconsider the COD and that there was an unexercised right to appeal the MAC, as new evidence had come to light after the MAC was issued.

The court found that the PIC indeed had the power to reconsider the COD under section 57 of the PIC Act. The court exercised its discretion in favour of the applicant, rescinding the COD to enable an appeal of the MAC. The court relied on various cases, including Papalia v Transom Services Pty Ltd t/as Transom Scaffolding, Department of Communities & Justice v Cannell, Phan v Elcon Cable Processors, Dimos v Gordian Runoff Limited, Baker v Southern Metropolitan Cemeteries Trust, Petrovic v BC Service No 14 Pty Limited and Ors, Samuel v Sebel Furniture Limited, and Hilliger v Hilliger, to support its decision. The court concluded that the new evidence provided by the applicant, which indicated that the applicant’s condition was not stable at the time of the MAC, constituted an unexercised right to appeal.

The Personal Injury Commission rescinded the COD issued by the former Workers Compensation Commission dated 30 September 2019 pursuant to section 57(1) of the PIC Act. The court granted leave to the applicant to file an appeal against the MAC dated 27 August 2019 within 28 days, under section 327(3)(a) and/or (b) of the 1998 Act.

Orders

Orders of the court

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Background

Background to the litigation

Whilst I accept that the applicant had a theoretical right to appeal on the basis of deterioration, in my view the pivotal issue as identified by Schmidt AJ is whether there is a basis for the commencing of the proceedings before the establishment date. Or as Principle Member Harris said in Baker “the right is only available to be exercised ‘when the facts underlying an application for referral existed prior to 1 March 2021 and those facts were available to the party’”. [Emphasis added]. If there is no evidence on which to commence the proceedings, there is no “basis” for the proceedings and no “unexercised right”. Whilst there may have been a theoretical right to bring proceedings there is in my view no “unexercised right” for the purposes of cl 14D until the information is available on which to base the commencement of such proceedings. The applicant submits that Dr Meakin and the applicant were unaware at the time that Dr Meakin examined the applicant on 20 August 2019 and the issuing of the MAC on27 August 2019 that the applicant was continuing to receive interventional treatment. In the applicant’s submission the evidence supports that the applicant’s condition was not stable at the time of the medical examination with Dr Meakin and the issuing of the MAC. In the applicant’s submission this new evidence affords the applicant an “unexercised right” to commence pre-establishment proceedings as it was in existence and not in the applicant’s possession prior to the “establishment day”. In the applicant’s submission the new evidence goes to the heart of the function of the AMS and the finding of maximum medical improvement and is relevant new medical evidence to which s 327(3)(b) speaks in that it would have a bearing on whether the applicant had actually reached maximum medical improvement. The applicant submits that the new evidence would have arguably had a direct bearing on the AMS’ finding as to maximum medical improvement. The applicant submits that on the basis of that evidence alone an appeal could have been made pursuant to s 327(3)(b) of the WIM Act prior to the “establishment day” and this is an “unexercised right”. There are no submissions for the respondent on this point. Dr Meakin records in the MAC recorded in respect to the applicant’s “Present treatment” that the applicant was continuing to undergo acupuncture, osteopathy and physiotherapy treatment as well as his own personal exercise programme at home and that he continued to use physiotherapy creams and took Turmeric medication and fish oil. Dr Meakin recorded no other continuing treatments at the time of examination. Prior to the medical examination with Dr Meakin, Dr David Abraham wrote to Dr Lauren McCann on 22 July 2019 advising that he would request a cortisone injection to the left subacromial space (left shoulder).[11] Dr Abraham again wrote to Dr McCann on 13 August 2019 advising that he thought that the applicant may benefit from a cortisone injection to his left subacromial space (left shoulder).[12] Dr Abraham wrote to Dr McCann on 27 August 2019 (the day on which the MAC was issued) that approval had been given for a cortisone injection to the applicant’s left shoulder which Dr Abraham had performed.[13] [11] Applicant’s reconsideration documents p. 749.[12] Applicant’s reconsideration documents p. 748.[13] Applicant’s reconsideration documents p. 746.[14] Applicant’s reconsideration documents p. 736.[15] Applicant’s Application to Admit Late Documents (AALD) dated 16 October 2024 p. 1.Dr Abraham wrote to Dr McCann on 30 June 2020 advising that the applicant continued to have left shoulder pain and that he had referred the applicant for an MR arthrogram of the left shoulder to assess for a SLAP tear.[14] On 7 August 2020 the applicant’s left shoulder was injected with local anaesthetic.[15]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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