Supreme Court New South Wales Medium Neutral Citation: Pham v Quality Bakers Australia Pty Limited t/as Goodman Fielder [2023] NSWSC 897 Hearing dates: 1 March 2023 Date of orders: 28 September 2023 Decision date: 28 September 2023 Jurisdiction: Common Law Before: Simpson AJ Decision: 1. Summons dismissed; 2. The plaintiff to pay the first defendant's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – Personal Injury Commission – review of the decision of an Appeal Panel – where plaintiff discontinued proceedings prior to the application for judicial review Legislation Cited: Personal Injury Commission Act 2020 (NSW) s 5 Personal Injury Commission Rules 2021 (NSW) rr 5, 76 Supreme Court Act 1970 (NSW) s 69 Workers Compensation Act 1987 (NSW) ss 4, 60, 66 Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 105, 294, 323, 325, 327, 328 Category: Principal judgment Parties: Van Cuong Pham (Plaintiff) Quality Bakers Australia Pty Limited t/as Goodman Fielder (1st Defendant) Appeal Panel of the Personal Injury Commission of NSW (2nd Defendant) President of the Personal Injury Commission of NSW (3rd Defendant) Representation: Counsel: S Hickey (Plaintiff) A Combe (1st Defendant) Submitting appearances (2nd & 3rd Defendants) Solicitors: Longton Compensation Lawyers (Plaintiff) Hicksons (1st Defendant) Crown Solicitor for NSW (2nd & 3rd Defendants) File Number(s): 2022/226927 Decision under appeal Court or tribunal: Personal Injury Commission of New South Wales Jurisdiction: Medical dispute Date of Decision: 2 May 2022 Before: Member Paul Sweeney, Dr James Bodel and Dr Margaret Gibson as an appeal panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act File Number(s): M1-W4788/21 JUDGMENT 1. HER HONOUR: By Summons filed on 2 August 2022 the plaintiff, Van Cuong Pham, seeks, pursuant to s 69 of the Supreme Court Act 1970 (NSW), judicial review of a decision of an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIM Act"). The decision was made on 2 May 2022 and dismissed an appeal against a Medical Assessment Certificate given on 11 January 2022 by a medical assessor pursuant to s 325(1) of the WIM Act. 2. The plaintiff named Quality Bakers Australia Pty Limited trading as Goodman Fielder as first defendant, the members of the Appeal Panel as second defendant and the President ("the President") of the Personal Injury Commission ("PIC") as third defendant. 3. The orders the plaintiff seeks are expressed in the summons to be: (i) an order in the nature of certiorari quashing the decision of the Appeal Panel; and (ii) an order in the nature of mandamus that "the matter" (the subject of the medical assessment and the decision of the Appeal Panel) be remitted to the President for referral to a differently constituted Appeal Panel for determination of the medical dispute that was the subject of the medical assessment and the Appeal Panel's decision. 1. The plaintiff asserts that the decision of the Appeal Panel is affected by error of law on the face of the record and jurisdictional error. Background 1. From 2005 the plaintiff was employed by the first defendant in various roles, first as general labourer and later as a machine operator and packer in the first defendant's premises at Moorebank. The work involved repetitive bending and heavy lifting. In 2014 he developed lower back pain which he attributed to the conditions of his employment. On 23 April 2018 the plaintiff suffered severe back pain when he was tipping crates of bread into a hopper. He sought medical attention. After about a week the plaintiff returned to work on light duties but the pain was intense and he ceased work in July 2018. (There are slight variations in these dates, which are drawn from the plaintiff's statement, and those contained in the account of facts in the Appeal Panel's decision. The variations are not material for present purposes). 2. On 26 August 2019 the plaintiff submitted a "Worker's Injury Claim Form". He claimed to have suffered an "injury" within the meaning of s 4 of the Workers Compensation Act 1987 (NSW). Section 4 provides as follows: "Injury (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means— (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease …" 1. On 14 August 2020 the first defendant terminated the plaintiff's employment. 2. On 25 May 2021 the plaintiff, through his solicitors, claimed, pursuant to s 66 of the Workers Compensation Act, compensation for permanent impairment. On 4 August 2021 the first defendant, through its insurer, disputed the plaintiff's entitlement to compensation. It seems that he had also made a claim for weekly payments of compensation pursuant to Pt 3 Div 2 of the Workers Compensation Act and for payment of medical expenses pursuant to Pt 3 Div 3 of that Act. The first defendant's insurer also disputed this claim. 3. On 28 September 2021 the plaintiff filed in the PIC an Application to Resolve a Dispute ("ARD"). He again claimed weekly benefits resulting from his incapacity for work resulting from the injury. He also claimed, pursuant to s 66, lump sum compensation for permanent impairment to his lumbar spine. Lump sum compensation under s 66 is available only where the injury results in a degree of permanent impairment greater than 10%. Attached to the ARD were a number of supporting documents, including medical reports. 4. In the ARD the plaintiff nominated as the "matters in dispute" his claim for "weekly benefits where liability in dispute" and "lump sum compensation where liability in dispute". 5. The plaintiff's claim was that his injury was, within the meaning of s 4(b)(ii) of the Workers Compensation Act, the aggravation, acceleration, exacerbation or deterioration of a pre-existing condition of degenerative changes in his lumbar spine, to which his employment was the main contributing factor. By s 16(1)(a)(i) the "injury" was deemed to have happened at the time of his incapacity (23 April 2018). The plaintiff acknowledged that his lumbar spine was affected by a condition called "osteopenia", a condition that can cause "wedge" fractures. 6. Pursuant to Pt 7 of the WIM Act the plaintiff's claim for compensation for permanent impairment under s 66 of the Workers Compensation Act was referred to a Medical Assessor for assessment. The referral was for assessment of: "the degree of permanent impairment, if any, of the lumbar spine as a result of injury agreed deemed to have occurred on 23 April 2018." 1. The Medical Assessor, Dr Tim Anderson, after considering medical reports provided by both parties and examination of the plaintiff, assessed the plaintiff's degree of "whole person impairment" of the lumbar spine at 7%. He issued a Medical Assessment Certificate to that effect. He considered that the "wedging" in the plaintiff's spine was likely to be associated with the plaintiff's condition of osteopenia and not with the circumstances of the plaintiff's employment. By that assessment the plaintiff was ineligible for permanent impairment compensation under s 66. 2. Strangely, the Medical Assessor answered in the negative a question as to whether any of the whole person impairment was due to a previous injury, pre-existing condition or abnormality but then, pursuant to s 323 of the WIM Act, deducted one-tenth from the assessment of 7%. (Section 323(1) requires a deduction for any proportion of the impairment that is due to any previous injury, pre-existing condition or abnormality). 3. Pursuant to s 327 of the WIM Act the plaintiff applied to the President to appeal against the assessment. An appeal against a medical assessment is available only on the limited grounds specified in s 327(3) and only if the President is satisfied, on the face of the application and any submissions made, that at least one of the specified grounds has been made out (subs (4)). The plaintiff contended that the assessment was made on the basis of incorrect criteria, and/or the medical certificate contained a demonstrable error. The President was satisfied that at least one of the grounds had been made out and referred the appeal to an Appeal Panel constituted under s 328. 4. On 2 May 2022 the Appeal Panel confirmed the decision of the medical assessor and issued a certificate to that effect. 5. It is that decision that the plaintiff seeks to have reviewed under s 69 of the Supreme Court Act. As indicated above, he seeks an order in the nature of certiorari setting aside the decision, and an order in the nature of mandamus remitting "the matter" to the President for referral to a differently constituted appeal panel. 6. The "matter" which the plaintiff seeks to have remitted is the appeal against the decision of the medical assessor certifying the plaintiff's permanent impairment resulting from the injury at 7% whole person impairment. That was one of the two claims made by the plaintiff in the ARD filed on 26 August 2019. At that time, it appears that the plaintiff's claim for "weekly benefits" remained open and undetermined. (It was finalised on 3 June 2022 by consent orders, embodied in a Certificate of Determination, made by PIC pursuant to which the plaintiff was to be paid a specified sum, as well as unspecified "reasonably necessary medical expenses". That concluded the proceedings commenced by the ARD.) 7. In the meantime, on 17 May 2022 (that is, postdating the decision of the Appeal Panel but predating the consent orders made by PIC) the plaintiff filed an "Election to Discontinue Proceedings". He identified the proceedings discontinued as "the claim for lump sum compensation 'only'". 8. Rule 76 of the Personal Injury Commission Rules 2021 (NSW) ("the PIC Rules") provides: "An applicant may discontinue applicable proceedings, or part of applicable proceedings, as against one or all of the other parties to the proceedings, at any time before the proceedings are finally determined." 1. "Applicable proceedings" are defined in r 5 of the PIC Rules to include "Commission Proceedings", which in turn, is defined as proceedings before PIC under the Personal Injury Commission Act 2020 (NSW) ("the PIC Act") or "enabling legislation". "Enabling legislation" is defined in s 5(1) of the PIC Act as "the workers compensation legislation" and includes the Workers Compensation Act and the WIM Act. 2. The plaintiff's application in the ARD constituted "applicable proceedings", made up of two parts – the application for lump sum compensation under s 66 and the application for weekly payments. Advisedly or otherwise, the plaintiff discontinued that part of the applicable proceedings that represented his claim for lump sum compensation under s 66 of the Workers Compensation Act. That was done before the "applicable proceedings" constituted by the ARD were "finally determined". 3. Even if the plaintiff's claims of error of law on the face of the record or jurisdictional error were to be made out, there is thus no "matter" to be remitted to the President for referral to a differently constituted Appeal Panel, as sought by the plaintiff. 4. Although it might be possible to find jurisdictional error or error of law on the face of the record in the decision of the Appeal Panel, justifying an order setting aside that decision, having regard to the notice of discontinuance, there is nothing left to remit by order of mandamus to the President. 5. Without the benefit of argument I have considered whether the plaintiff's notice of discontinuance might be taken to have been filed at a time after the final determination in the proceedings, such that it does not come within r 76 of the PIC Rules. 6. I have tentatively concluded that it was not. 7. The proceedings are the proceedings initiated by the ARD. By s 105 of the WIM Act, PIC has exclusive jurisdiction to examine, hear and determine all matters arising under that Act and the Workers Compensation Act. Referral for medical assessment and any appeal against a medical assessment are steps on the way to final determination of a proceeding so commenced. By s 294 of the WIM Act, if a dispute is determined by PIC, PIC must, as soon as practicable after determination of the dispute, issue the parties with a certificate of determination. 8. The only certificate of determination of which there is evidence is that of 3 June 2022 referred to above, of the determination of the plaintiff's claim for medical expenses under s 60 of the Workers Compensation Act. As that certificate was issued after the notice of discontinuance was filed, it may be taken to have finally determined the proceedings. Given the notice of discontinuance, the "proceedings" by then consisted only of the application for s 60 medical expenses. 9. The only conclusion is that the summons must be dismissed. 10. The orders I make are: 1. Summons dismissed; 2. The plaintiff to pay the first defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2023