Sleiman v AGR Tyres Pty Ltd [2022] NSWPIC 496
Background
The injured worker was employed by the defendant as a tyre fitter. He suffered a significant injury in the course of his employment to his shoulders and lower back. The workers compensation insurer accepted liability and weekly payments of compensation and medical expenses were paid.
Mr Sleiman eventually made a claim in respect of WPI of 46%, pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (WC Act), which the insurer rejected.
Eventually, this matter was referred to an Approved Medical Specialist (AMS), who certified a total of 2% WPI by way of a Medical assessment Certificate. Mr Sleiman instructed Turner Freeman Lawyers to appeal the decision. The matter was referred to a medical appeal panel who re-examined Mr Sleiman, issuing a further Medical Assessment Certificate certifying the applicant as suffering a 14% whole person impairment.
Two years after the provision of this MAC, Mr Sleimans condition deteriorated and he instructed Turner Freeman Lawyers to seek a further appeal/reconsideration of his 14% whole person impairment.
Turner Freeman Lawyers on behalf of Mr Sleiman sought a fresh review of the determination of 14% WPI, on the basis of a reconsideration under ss 350(3) and 378 of the WIM Act.
However, the Registrar’s delegate determined that the decision in the MAC was not appealable beyond the avenues which had already been explored by the Applicant
The Applicant brought the matter before the Supreme Court of NSW on the basis of jurisdictional errors and errors of law on the face of the record, which was dismissed by Harrison AsJ. On appeal before the NSW Court of Appeal, however, the Applicant was successful in proving that ss 350 and 378 applied to the Applicant to permit a reconsideration of his WPI on the merits.
Decision
Effectively, the decision of the Court of Appeal, as remitted to the Commission, has now established that an injured worker can seek reconsideration of a MAC or MAP issued by the Commission in certain circumstances (namely when the workers condition has deteriorated or further medical information is available).
As a result of this decision, where it can be established that additional information is available or that there has been a deterioration of the degree of an injured workers permanent impairment, a reconsideration may be available. Whilst the bases for reconsideration in ss 350(3) and 378 have since been repealed, there remains a basis for reconsideration under s 329(1A), to which the above reasoning of the Court applies.
Section 329(1A) does not define a limit to the amount of times a reconsideration application can be explored provided that the above matters can be established each time.
This decision is very important for individuals whose impairment has previously been established as less than 15% but now have undergone further surgery, decompensated or have particular physical conditions which, with the progression of time have resulted in a further deterioration. In circumstances where a reconsideration is available and may assist a claimant in reaching 15% or 21% WPI, the injured worker should seek further legal advice as such a claim may open the door for further compensation, a work injury damages claim or reinstatement of wages that have ceased.