Secretary, Department of Communities & Justice v Cannell (NSWPICPD 2024)

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Key Takeaways

There are many important WPI thresholds contained in the workers compensation legislation, including 15% WPI for work injury damage claims, 21% WPI for high needs workers and 31% WPI for highest needs workers. Each threshold entitles a worker to make certain claims for compensation and/or damages.

In this case, it was decided that a Medical Assessment Certificates (MAC) issued for one purpose (a s66 entitlement) could not be appealed for another purpose (establishing the high needs worker threshold).

Brief Facts

The worker injured her right lower leg during an incident at work on 3 October 2013. Liability was accepted for weekly payments and medical expenses.

Some years later, in January 2018, the worker made a claim for lump sum compensation in respect of 36% WPI. That claim was disputed and it proceeded to assessment by a Medical Assessor (MA) of the former Workers Compensation Commission (WCC), now the Personal Injury Commission (PIC). The MA assessed 12% WPI and an MAC was issued on 2 November 2018. The worker subsequently appealed that MAC. That appeal proceeded to an Appeal Panel (AP) but was dismissed. A Certificate of Determination (COD) was issued on 4 April 2019, which formalised the assessment of 12% WPI.

Upon finalisation of these proceedings, the worker underwent a total knee replacement. Over the following years, the worker made various applications for reconsideration and applications for the assessment of WPI for threshold purposes. Each claim/application was on the basis that the worker’s impairment had deteriorated because she had undergone a total knee replacement. On each occasion, the application was opposed by the employer owing to the fact that a MAC certified the worker with 12% WPI.

The final of these applications was an application for reconsideration of the original COD dated 4 April 2019 so that the worker could appeal the MAC. The worker asserted that she was not seeking additional lump sum compensation (as she had no entitlement to do so) but that she should be reassessed to determine whether her impairment was such that she was a high or highest needs worker. If she was, her weekly compensation and medical expenses would be reinstated, and she would be entitled to bring a claim for work injury damages.

Judgment

Arbitral Decision

By this time, the WCC had been abolished and the PIC had been established. The worker’s application to revoke the previous COD relied on s350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act). When the PIC was established, s350(3) was repealed. The only way in which the worker could seek the benefit of s350(3) of the WIM Act was if she could establish that she had an unexercised right to make the application prior to the repeal. The worker had previously made an application for reconsideration, which was dismissed. On this basis, the employer contended that the worker could not rely on s350(3).

The worker’s application was also opposed on a number of other grounds, being that:

1. Since the MAC dated 2 November 2018 determined the worker’s January 2018 lump sum compensation claim, any appeal of the MAC could only be in the context of that claim.
2. It follows that any appeal of the MAC or a reconsideration of the AP decision based on a deterioration of the worker’s condition amounted to a new claim for lump sum compensation, which was prevented by operation of s66(1A) of the Workers Compensation Act 1987 (WC Act).
3. It was impermissible to appeal a MAC that had already been the subject of appeal.

The non-Presidential member found in favour of the worker. In doing so, despite the worker’s previous reconsideration application, she found that the worker had not exercised her right to be reassessed for impairment after the worker’s total knee replacement. The Member also found that the proposed appeal of the MAC was for a threshold dispute and did not offend the one lump sum compensation claim principle, since further lump sum compensation was not being sought.

Presidential Decision

On appeal, the employer submitted that the non-Presidential Member addressed the wrong question when determining whether the worker had an unexercised right to bring an application under s.350(3) of the WIM Act, in that the enquiry was not whether the worker had sought a reassessment after surgery but whether a previous application under s350(3) had been determined. It was also argued that the determination that an appeal of the MAC or reconsideration of the AP decision was a threshold dispute failed to recognise that the ‘medical dispute’ between the parties was only in relation to lump sum compensation.

Acting Deputy President Nomchong SC upheld the employer’s appeal on all grounds.

The most critical finding made by Nomchong SC ADP was that the worker could not appeal the MAC for the purpose of reaching one of the relevant thresholds (15% WPI, 21% WPI or 31% WPI) because that MAC had only determined a claim for lump sum compensation and not a claim relating to one of those thresholds. Since the claim made by the worker in January 2018 was only for lump sum compensation, the ‘medical dispute’ between the parties was limited to that claim. Acting Deputy President Nomchong SC held that any appeal of the MAC could only be in relation to that ‘medical dispute’ and therefore, an appeal of the MAC to address threshold issues for entitlements to work injury damages or weekly compensation could not be pursued
As the employer’s appeal was successful, Nomchong SC ADP proceeded to re-determine the worker’s application. While she considered that the worker was able to pursue the application pursuant to s.350(3) of the WIM Act, the application was dismissed for a number of reasons, including the unexplained delay in prosecuting the further application since the original proceedings and the preference for finality of litigation.

Implications

The decision holds significance since it states that a worker will not be able to pursue an appeal or reconsideration of a MAC based on a deterioration of their condition to establish one of the relevant WPI thresholds unless those thresholds were incorporated into the original claim for which the MAC relates. On that basis, workers would have to specifically make a claim concerning each of the relevant thresholds at the time that they seek to have their impairment assessed by a MA of the PIC.

Assuming that this decision is followed, failure to do so would likely prevent a worker from being able to agitate any thresholds at a future date.

Of course, there will be situations where a worker cannot make a valid claim in relation to the high or highest needs thresholds (21% or 31% WPI) at the time of their lump sum compensation claim because their evidence does not allow it. In such circumstances, it is arguable that this decision would operate to prevent the worker from seeking to appeal or reconsider the MAC in the future. In addition, the worker would also arguably be unable to obtain a separate MAC addressing only the threshold issue due to the operation of s.322A of the WIM Act.