Valesini v Star Track Express Pty Limited

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 payment by the respondent to the applicant of permanent impairment compensation in respect of a 14% whole person impairment in accordance with the 13% whole person impairment assessed by Dr Meakin together with the addition of an 1% for scarring, leading to 14% whole person impairment.
On 24 May 2022, the applicant was assessed by Dr Khan, independent medical examiner (IME) who assessed an 18% whole person impairment for his left lower extremity, right lower extremity and scarring as a result of his injuries, representing a 5% increase of the MAC issued by Dr Meakin, and a 4% increase on the Certificate of Determination issued following that MAC.
Additionally, there is no issue the applicant came to surgery on 27 October 2021, postdating the MAC and the previous assessments carried out by the doctors which were before
Dr Meakin at the time of the MAC being issued.
The applicant submits the post-surgery assessment of Dr Khan satisfies the test set out by the Court of Appeal in Riverina Pines Pty Limited v Workers Compensation Commission [2007] NSWCA 94 to the effect that “deterioration” as described in s 327(3)(a) means a “deterioration from the degree of permanent impairment certified by a Medical Assessment Certificate since the examination on which it was based”.
The respondent had the applicant assessed by Dr Bosanquet IME on 30 September 2022. He assessed the applicant as suffering 4% whole person impairment, 2% each for the right and left lower extremities, including a one-third deduction for each ankle to account for a pre-existing deformity and no allowance for scarring. On this basis, the respondent opposes the reconsideration application alleging there is no deterioration in the applicant's condition.
In the alternative, in the event the Commission allowed the Reconsideration Application, the respondent submits the report from Dr Bosanquet should go before any Medical Assessor for consideration. In my view, that submission is prima facie well made, though for the reasons which follow I do not believe it is within my purview to make that decision.
Additionally, the respondent submitted that given Dr Khan’s latest assessment of the left lower extremity (ankle) had not changed from the 7% he assessed in his report which was before Dr Meakin when the MAC was issued, any successful Reconsideration Application should be confined to the right lower extremity (ankle) and scarring to that body system, which Dr Khan had rated as now having a higher impairment since the MAC was issued.
Following the preliminary conference, the parties lodged additional submissions.
In those submissions, the parties drew the Commission's attention to the recent decision of Member Isaksen in BEX v Koskela Pty Ltd [2023] NSWPIC 174 (BEX), in which the learned Member discussed the principles applicable to section 57 of the Personal Injury Commission Act2020 (the PIC Act), reflecting as they do the provisions of the now repealed s 350 of the Workplace InjuryManagement and Workers Compensation Act 1998 (the 1998 Act). Those provisions were the subject of the decision of Deputy President Roche in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel). As Member Isaksen noted in BEX, the principles enunciated by the learned Deputy President in Samuel are applicable to any exercise of the discretion pursuant to s 57 of the PIC Act.
In Samuel, nine broad principles were set out. As the respondent in this matter noted, those principles are essentially a balance between doing justice between the parties and the public interest that litigation should not proceed indefinitely. What was made clear by the Deputy President in Samuel is the Commission has a wide discretion to reconsider its previous decisions, including any award, order determination, ruling, and direction. That discretion, whilst wide, must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration. Among the matters to be taken into consideration are, as noted by the respondent, the public interest that litigation should not proceed indefinitely and also whether there is now available new evidence which could not with reasonable diligence have been obtained at the time of the making of the first decision.
In this matter, I am of the view that the applicant meets the fifth principle set out by Deputy President Roche in Samuel, namely that there is fresh evidence now available which was not at the time of the issuing of the original Certificate of Determination and MAC. That is, the applicant has, since the issuing of the MAC, undergone surgery to the previously assessed body systems and has subsequently been assessed by his IME. That further assessment is, in my view, new or fresh evidence which quite obviously could not have been obtained with reasonable diligence prior to the examination which the applicant had with Dr Meakin on 3 June 2021.
In Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 (Railcorp NSW), AsJ Harrison said at [56]:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clearcut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
As was the case in BEX, this is not a situation where there is simply a different opinion being expressed by an IME on the question of whole person impairment. Rather, there is now fresh evidence due to the applicant having undergone surgery after the MAC was issued by Dr Meakin. There is evidence of a significant material change in the applicant's condition as a result of his undergoing that surgery which in my view warrants the Commission to exercise its wide-ranging discretion to revoke the Certificate of Determination dated 14 September 2021, so as to allow the applicant to appeal the MAC pursuant to s 327 of the 1998 Act. Such a revocation will allow any injustice to the applicant to be rectified.
The Commission is required pursuant to s 43(3) of the PIC Act to act according to equity, good conscience and the substantial merits of the case without regards to technicalities or legal forms. In the circumstances of this case, the substantial merits of this dispute should allow the applicant to have the Certificate of Determination revoked because of the intervening event, namely the surgery which he underwent and which has the potential to change the assessment of his whole person impairment as a result of the injury he sustained.
Having determined the Certificate of Determination should be revoked for the above reasons, I note s 327(4) of the 1998 Act provides that it is for the President of the Commission to be satisfied on the face of the application made by the applicant, and any submissions made to the President that at least one of the grounds specified in s 327(3) has been made out. Additionally, s 329 of the 1998 Act provides an alternative to an appeal against the MAC by way of further assessment.
It is preferable for the President to consider and determine if s 329 is an appropriate alternative if the applicant can otherwise meet the threshold required by s 327(3)(a) and/or (b). Regarding the submission surrounding Dr Khan’s identical assessments of the left lower extremity both before and after surgery, in my view whether that body system should be the subject of any referral is a question for the President in determining whether the matter first of all satisfies the requirements of s 327(3) of the 1998 Act and if so whether it is appropriate for further assessment as an alternative to appeal pursuant to s 329(1) of the 1998 Act.
Accordingly, the orders from this application will be:
(a) the Certificate of Determination dated 14 September 2021 is revoked pursuant to s 57(1) of the PIC Act;
(b) the matter is remitted to the President to determine:
i)if at least one of the grounds for appeals specified in s 327(3) of the 1998 Act has been made out; and, if so
ii)whether this matter can be referred for a further assessment of permanent impairment as an alternative to an appeal as provided for by s 329(1) of the 1998 Act.

[2023] NSWPIC 271

8 June 2023