Valesini v Star Track Express Pty Limited - [2023] NSWPIC 271

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Valesini v Star Track Express Pty Limited [2023] NSWPIC 271
APPLICANT:	Daniel Valesini
RESPONDENT:	StarTrack Express Pty Limited
Member:	Cameron Burge
DATE OF DECISION:	8 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Application to revoke Certificate of Determination (COD) pursuant to section 57(1) of the Personal Injury Commission Act 2020 (2020 Act) and to remit to the President of the Personal Injury Commission (Commission) to determine whether the matter may be referred for further assessment of permanent impairment; the worker suffered an agreed injury in 2011 and was the subject of medical assessment in the Commission on 3 June 2021, leading to a COD issued for 14% whole person impairment; since that time, the applicant has undergone further surgery to a previously assessed body part and seeks to have the COD revoked and a further medical assessment undertaken; the application is opposed; Held – there is fresh evidence now available; in exercising the broad discretion concerning reconsiderations, the Commission must take into account the policy requirement of finality of litigation and the obligation to rectify any clearcut injustice; one circumstance where a reconsideration may take place is where there is fresh evidence, as opposed to more evidence: Railcorp NSW v Registrar of the WCC of NSW; acting as required by section 43 of the 2020 Act according to equity, good conscience and the substantial merits of the case without regards to technicalities or legal forms, it is appropriate in the circumstances of this matter to revoke the previous COD pursuant to section 57(1) of the 2020 Act; matter remitted to the President to determine whether one of the grounds specified in section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been made out, and if so whether the matter can be referred for further assessment as an alternative to appeal as provided by section 329(1) of the 1998 Act.
determinations made:	1. The Certificate of Determination dated 14 September 2021 is revoked pursuant to s 57(1) of the Personal Injury Commission Act2020. 2. The matter is remitted to the President to determine: a. if at least one of the grounds for appeal specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 has been made out; and, if so b. whether this matter can be referred for further assessment of permanent impairment as an alternative to appeal as provided for by s 329(1) of the Workplace Injury Management and Workers Compensation Act 1998.

STATEMENT OF REASONS

BACKGROUND

The applicant, Daniel Valesini sustained an injury on 6 September 2011 in the course of his employment with the respondent, StarTrack Express Pty Limited.
The respondent has accepted liability for the injury.
On 3 June 2021, the Medical Assessment Certificate (MAC) of Dr Meakin was issued, assessing the applicant as suffering a 13% whole person impairment.
On 14 September 2021, the Personal Injury Commission (Commission) issued a Certificate of Determination–Consent Order providing for the…

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: [2023] NSWPIC 271
Decision Date: 8 June 2023

CaseChat Overview and Summary

In the case of Valesini v Star Track Express Pty Limited, the applicant, Valesini, sought the revocation of a Certificate of Determination (COD) issued by the Personal Injury Commission. The COD, which was issued under section 57(1) of the Personal Injury Commission Act 2020, assessed Valesini's whole person impairment at 14% following a medical assessment on 3 June 2021. Valesini argued that further surgery on a previously assessed body part warranted a reconsideration of the COD. The application was opposed by Star Track Express Pty Limited.

The legal issues before the court involved the criteria for revoking a COD and the circumstances under which a reconsideration could be granted. The court had to determine whether the fresh evidence provided by Valesini's post-assessment surgery justified a revocation of the COD and a subsequent reassessment of permanent impairment. The court needed to balance the policy requirement of finality in litigation with the obligation to rectify any clear injustice. According to the precedent set in Railcorp NSW v Registrar of the WCC of NSW, fresh evidence, as opposed to merely more evidence, could warrant reconsideration.

In exercising its discretion under section 43 of the 2020 Act, the court held that the fresh evidence presented by Valesini justified revoking the previous COD. The court considered the principles of equity, good conscience, and the substantial merits of the case, ruling that it was appropriate to remit the matter to the President of the Commission to determine whether the grounds for reconsideration under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 had been met. If so, the President would then decide whether the matter could be referred for further assessment as an alternative to appeal under section 329(1) of the 1998 Act.

The final order of the court was to revoke the previous Certificate of Determination and to remit the matter to the President of the Personal Injury Commission to determine if the criteria for reconsideration and further assessment were satisfied.

Orders