Tough v Protech Personnel Pty Ltd - [2024] NSWPIC 454

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tough v Protech Personnel Pty Ltd [2024] NSWPIC 454
APPLICANT:	Shannon Tough
RESPONDENT:	Protech Personnel Pty Ltd
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	27 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020; section 57; sections 329(1)(b) and 329(1A) of Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); application for reconsideration; worker’s claim for lump sum compensation included scarring (TEMSKI); pleadings restricted to the lumbar spine and only this body system was referred to the Medical Assessor (MA); worker content with Medical Assessment Certificate (MAC), but when the employer appealed, the worker discontinued the substantive and appeal proceedings; parties agreed that the discontinued proceedings should be restored; dispute as to whether the claim should be referred back to the MA to assess the scarring; Skates v Hills Industries Ltd, Howell v Stringvale Pty Ltd, Schipp v Herfords Pty Ltd and Samuel v Sebel Furniture Limited discussed and applied; Held – medical dispute that was referred to the Commission always included scarring (TEMSKI) and the referral to MA did not reflect this; the employer was on notice when IME report served; prejudice to the worker outweighed that of the employer, who could still file a fresh appeal; in the interests of justice between the parties, application for reconsideration granted; claim remitted to the President for referral back to MA to assess scarring.
DETERMINATIONS MADE:	The Commission determines: 1. The name of the respondent is amended to Protech Personnel Pty Ltd. 2. The Elections to Discontinue filed in W3479/23 and M1-W3479/23 are revoked and both sets of proceedings are restored. 3. The applicant’s application pursuant to s 57 of the Personnel Injury Management Commission Act 2020 for reconsideration in accordance with ss 329(1)(b) and 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 4. Page 8 of the Application to Resolve a Dispute will be amended as follows: “Systems Claimed: Lumbar spine and scarring (TEMSKI)”. 5. I remit this matter to the President for referral to back to the Medical Assessor, Dr Anderson pursuant to ss 329(1)(b) and 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment as follows: (a) Date of injury: 30 May 2019 – personal injury. (b) Body systems / parts: (i) Scarring (TEMSKI). 6. The Medical Assessor is directed to provide a further Medical Assessment Certificate that incorporates his assessment of whole person impairment of the lumbar spine assessed in his Medical Assessment Certificate dated 13 July 2023. 7. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Medical Assessment Certificate dated 13 July 2023, and (d) a copy of this Certificate of Determination. 8. The appeal proceedings in M1-W3479/23 are stayed pending the outcome of the further assessment by the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

Shanon Tough (the applicant) is 42-years-old and commenced employment…

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: [2024] NSWPIC 454
Decision Date: 27 March 2024

CaseChat Overview and Summary

In the matter of Tough v Protech Personnel Pty Ltd, the Personal Injury Commission (PIC) was tasked with considering an application for reconsideration regarding a worker's claim for lump sum compensation, which included scarring. The dispute arose when the employer appealed the Medical Assessment Certificate (MAC) and the worker subsequently discontinued the substantive and appeal proceedings. Both parties agreed that the discontinued proceedings should be restored, but they disagreed on whether the claim should be referred back to the Medical Assessor (MA) to assess the scarring. The PIC was required to determine whether the claim should be referred back to the MA for reassessment of the scarring and whether the employer's appeal was valid given the scope of the original referral.

The PIC addressed the legal issues by examining the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and the Personal Injury Commission Act 2020. The PIC noted that the original referral to the MA was limited to the lumbar spine, but the worker’s claim for compensation included scarring, which was always part of the medical dispute referred to the Commission. The PIC held that the employer was on notice of the scarring claim when the independent medical examiner (IME) report was served, and any prejudice to the employer was outweighed by the prejudice to the worker. The PIC concluded that it was in the interests of justice to grant the application for reconsideration and remit the claim to the President for referral back to the MA to assess the scarring.

The PIC's decision was grounded in the understanding that the referral to the MA did not reflect the full scope of the medical dispute, which always included scarring. The PIC found that the employer could still file a fresh appeal if necessary, and the worker’s right to a fair assessment of all aspects of the injury was paramount. The PIC's ruling emphasized the importance of ensuring that the referral to the MA correctly encompasses all aspects of the worker's claim to avoid future disputes and ensure a comprehensive assessment.

The PIC ordered that the proceedings be restored and the claim remitted to the President for referral back to the MA to assess the scarring, in accordance with the provisions of the 1998 Act and the PIC Act. This decision highlights the importance of accurately reflecting the full scope of a worker's claim in any referral to a MA to ensure a fair and comprehensive assessment.

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

Section 329 of the 1998 Act deals with referrals for further assessment by a MA. It provides:“329 Referral of matter for further medical assessment or reconsideration(1) A matter referred for assessment under this Part may be referred a gain on one or more further occasions for assessment in accordance with this Part, but only by—(a) the President as an alternative to an appeal against the assessment as provided by section 327, or(b) a court or the Commission.(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.” Before there can be any reconsideration of the referral to the MA, the Elections to Discontinue filed in W3479/23 and M1-W3479/23 would need to be revoked and both sets of proceedings restored. As both parties agree that the matters should be restored, I propose to do so. Section 57 of the PIC Act confirms that provides that the Commission can rescind, alter or amend any decision previously made or given by the Commission. The referral to the MA qualifies for this. Mr Simmons has referred me to a number of decisions in support of the respondent’s case. In my view these authorities can be distinguished from the facts in the present matter. In O’Callaghan, Acting President Roche, as he then was, was required to determine whether an Arbitrator was in error when he declined to set aside consent orders by way of a reconsideration under s 350(3) of the 1998 Act. Ms O’Callaghan’s lump sum claim in respect of her lumbar spine was referred by consent to and Approved Medical Specialist (AMS). She was assessed with 10% whole person impairment. Ms O’Callaghan’s neck condition deteriorated and an Application was filed in the Commission with respect to a threshold dispute Ms O’Callaghan’s lumbar and cervical spines. These proceedings were discontinued and she attempted to appeal the MAC. When the appeal was rejected by a delegate, Ms O’Callaghan sought a reconsideration of the original consent orders on the grounds that there had been a deterioration in her neck condition. The Arbitrator declined to reconsider the matter because the deterioration in s 327(3)(a) of the 1998 Act must relate to the original impairment that was assessed by the AMS, and his decision was confirmed on appeal by Acting President Roche, who indicated that it was not open to the worker to lodge an appeal against an assessment that the AMS did not make with respect to the cervical spine. The Acting President commented:“…an AMS can only give a certificate as to the matters referred for assessment. To say that the Medical Appeal Panel is not restricted to the matters in the original referral to the AMS ignores the fact that a matter does not get to a Medical Appeal Panel unless and until the Registrar is satisfied that, on the face of the application and any submissions made in support of it, at least one of the grounds for appeal specified in subsection (3) has been made out.”[6][6] O’Callaghan, [84].