Bessant v Newcastle Caravan City

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bessant v Newcastle Caravan City [2023] NSWPIC 167
APPLICANT:	Mark Bessant
RESPONDENT:	Newcastle Caravan City Pty Limited
Member:	Brett Batchelor
DATE OF DECISION:	17 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Reconsideration Application by applicant worker to set aside Certificate of Determination (COD) issued following a Medical Assessment Certificate (MAC) issued in 2017; reconsideration Application on basis of significant deterioration in applicant’s condition as a result of further surgery on his cervical spine, following earlier surgery prior to the issue of the 2017 MAC; liability for the further surgery declined by the respondent on the ground that it was not reasonably necessary as a result of the work injury; this surgery had the effect of increasing the applicant’s whole person impairment (WPI); the applicant relied on section 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and section 66A(3)(a) of the Workers Compensation Act 1987 (1987 Act)to submit that the workers compensation legislation contemplated deterioration in an injured worker’s condition after issue of a MAC and COD based on that MAC; consideration of the former section 350 of the 1998 Act and matters discussed by Roche ADP in Samuel v Sebel Furniture Ltd as to the Personal Injury Commission’s power of reconsideration under section 57(1) of the Personal Injury Commission Act 2020; Held – workers compensation legislation is beneficial legislation, notwithstanding the insertion into the 1987 Act of section 66(1A) and into the 1998 Act of section 322A, discloses a cost saving objective; discretion to set aside COD exercised in favour of the applicant; determined that the worker sustained 34% WPI, assessed by the independent medical examiners retained by the applicant and the respondent as a result of the subject work injury.
determinations made:	1. Pursuant to s 57 of the Personal Injury Commission Act 2020 the Certificate of Determination dated 28 March 2017 is hereby rescinded. 2. It is determined that the 34% whole person impairment sustained by the applicant has resulted from the injury received by him to the cervical spine on 26 June 2003 in the course of his employment with the respondent.

STATEMENT OF REASONS

BACKGROUND

Mark Bessant (the applicant/Mr Bessant) suffered injury to the cervical spine on
26 June 2003 arising out of or in the course of his employment with Newcastle Caravan City Pty Limited (the respondent). He was treated by Dr John Christie, neurosurgeon, who arranged an MRI scan on 18 July 2003, which showed a large left C6/7 disc protrusion.
On 26 September 2003 Dr Christie operated on the applicant’s cervical spine, performing a C6/7 anterior cervical disc removal without fusion. This gave some improvement in the condition, enabling Mr Bessant to return to work.
On 15 November 2004 the applicant and respondent entered into an agreement in accordance with s 66A of the Workers Compensation Act 1987 (the 1987 Act) under which the applicant received lump sum compensation pursuant to s 66 of the 1987 Act in respect of 18% whole person impairment (WPI) as a result of injury to the cervical spine on
[1] Application to Resolve a Dispute (ARD) p 69, noting that page number references are to those in the electronic records of the Personal Injury Commission (the Commission).
26 June 2003. This agreement was registered with the Workers Compensation Commission (WCC) on 21 December 2004.[1]
The applicant continued to work until he suffered a significant deterioration in his condition in 2012.
Dr Christie saw the applicant on 21 November 2012 and advised that he did not think that there was a strong case for surgical intervention at that stage. He was happy for Mr Bessant to continue with his work activities in the caravan business.
In February 2013 the applicant then came under the care of a pain management physician, Dr Simon Tame, who treated him with Botox and cortisone injections aimed at identifying the cause of the problem, and hopefully reducing pain. This treatment did not provide
Mr Bessant with significant improvement.
The applicant ceased work in April 2013.
The applicant saw Dr Christie again in July and September 2013. Dr Christie could not make a strong case for any further surgical intervention, and referred Mr Bessant back to Dr Tame.
In 2014 under the care of Dr Tame a trial spinal cord stimulator was inserted which provided improvement in the condition in the cervical spine, followed by the insertion of a full stimulator. That device had to be removed when there was an infection in the wound associated with the battery pack.
On 1 June 2016 the applicant was independently medically examined by Dr Ghabrial, orthopaedic and spinal surgeon, who assessed Mr Bessant as having sustained 25% WPI as a result of injury to the cervical spine on 26 June 2003 including 3% WPI in respect of surgery, plus 3% WPI for interference in activities of daily living, plus 1% WPI for scarring in accordance with the table for the evaluation of minor skin impairment (TEMSKI) at Table 14.1 in the WorkCover Guides for the Evaluation of Permanent Impairment, third edition -
[2] ARD pp 11 and 14.
1 February 2009. The total WPI therefore assessed by Dr Ghabrial in accordance with the Combined Values Chart in the Guides to the Evaluation of Permanent Impairment, fifth edition, issued by the American Medical Association (AMA 5) was 28%.[2]
On 15 December 2016 the applicant lodged the ARD with the WCC, claiming lump sum compensation for permanent impairment for a further 10% WPI as a result of injury to the cervical spine on 26 June 2003. On 13 January 2017 the WCC referred the matter to an Approved Medical Specialist for assessment of WPI.
On 2 February 2017 Approved Medical Specialist, Dr Tim Anderson, examined the applicant and produced a medical assessment certificate (MAC) dated 21 February 2017. Dr Anderson assessed the applicant as having sustained 17% WPI as a result of injury on 26 June 2002, plus 1% WPI in accordance with the TEMSKI Table, for a total of 18% WPI.
On 28 March 2017 the WCC issued a Certificate of Determination (COD 28 March 2017) in the following terms:
“The Commission determines:
1.   That the applicant suffers 18% permanent impairment in respect of cervical spine and scarring resulting from injury on 26 June 2003.
2.   That the applicant has no entitlement to further lump sum compensation resulting from injury on 26 June 2003.
Brief statement of reasons
3.   The Medical Assessment Certificate dated 21 February 2017 certifies 18% permanent impairment in respect of cervical spine and scarring resulting from injury on 26 June 2003, compensable as
$24,500.
4. The applicant was previously paid $24,500 in respect of 18% permanent impairment resulting from injury on 26 June 2003, in accordance with the Registration of Section 66A Lump Sum Agreement dated 21 December 2004 issued in WCC Matter Number 20888/04.
5.   Therefore the applicant has no entitlement to further lump sum compensation resulting from injury on 26 June 2003.
6.   The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”[3]
[3]
On 15 September 2017 Dr Christie performed a second operation which involved a left sided C5/6 foraminotomy with decompression of the C6 nerve root.
On 29 January 2021 the applicant was at the request of the insurer if the respondent, GIO Newcastle Workers Compensation (GIO), independently medically assessed by Dr Peter Bentivoglio, neurosurgeon, who produced a report dated 8 February 2021. Dr Bentivoglio noted that the applicant was being followed up by Dr Hansen (Professor Hansen) who recommended surgery in the form of a C3/4 anterior cervical fusion, a disc arthroplasty at C4/5, and anterior cervical discectomy and fusion at C5/6 and C6, C7.[4]
[4] Application to Admit Late Documents dated 22 February 2023 and attachments (AALD 22 February 2023) p 6.
Dr Bentivoglio said:
“The treatment that Dr Hansen has recommended is very major. He undoubtedly has
a work injury at the C6, C7 disc but all the degenerative disease occurring at C2/3,
C3/4, C4/5, C5 and C6 is related to the degenerative disease, not related to the work
injury in 2003.
Undoubtedly the injury in 2003 caused a significant disc prolapse at the C6, C7 level,
which went on and required operative intervention.”
Referring to the recommended surgery, Dr Bentivoglio said:
“So the appropriateness and potential effectiveness is low and I would give him about a 50% chance of getting some improvement in his symptoms”
On 24 February 2021 GIO issued to the applicant a notice under s 78 of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the surgery recommended by Professor Hansen on the ground that the medical treatment was not reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.[5]
[5] AALD 22 February 2023 p 2.
On 13 August 2021 the applicant underwent further surgery recommended by Professor Hansen, neurosurgeon, in the form of C3-C7 anterior cervical discectomy and fusion. According to the report of Dr Bentivoglio dated 1 September 2022, notwithstanding what the applicant says at [8] in his statement dated 11 November 2022, this surgery was undertaken by Dr Ivan Domazet.[6]
[6] See Reconsideration Application pp 3 and 456.
On 16 May 2022 the applicant was, at the request of his solicitor, independently medically assessed by Dr Stuart Riley, orthopaedic surgeon. Dr Riley reported on 17 May 2022, and assessed the applicant as having sustained 34% WPI as a result of injury on 26 June 2003.[7]
[7] Reconsideration Application p 12.
On 18 August 2022 the applicant was, at the request of the solicitor for the respondent, again independently medically assessed by Dr Bentivoglio who produced the report dated
1 September 2022 referred to at [18] above containing an assessment that the applicant suffered from 34% WPI of the cervical spine.
On 10 January 2023 the applicant lodged the Reconsideration Application with the Commission seeking recission of the COD 28 March 2017 to enable him to access benefits to compensation to which he is not currently entitled as a consequence of the operation of that COD. The two grounds on which the applicant relies in support of the Reconsideration Application are:
(a) a deterioration in his condition that has occurred since the issue of the COD
28 March 2017, such deterioration being as a result of the work injury of
26 June 2003, and
(b) it is in the interests of justice to rescind the COD 28 March 2017 to enable him to access benefits to compensation to which he is not currently entitled as a consequence of the operation of that COD.
On 20 January 2023 the respondent lodged with the Commission submissions in opposition to the Reconsideration Application (respondent’s submissions 20 January 2023).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) should the determination of the WCC in COD 28 March 2017 be revoked pursuant to s 57 of the PIC Act?
(b) should the matter be referred back to Medical Assessor, Tim Anderson, for further assessment or reconsideration pursuant to s 329 of the 1998 Act?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter was the subject of a preliminary conference on 21 February 2023 at which the following directions were issued:
“The Commission directs:
1.     The respondent is to lodge and serve by 7 March 2023:
(a)any further evidence on which it seeks to rely, and
(b) any further submissions on which it seeks to rely.
2.     The applicant is to lodge and serve by 21 March 2023:
(a)any further evidence on which he seeks to rely, and
(b)any further submissions on which he seeks to rely.
3.     The respondent is to lodge and serve by 28 March 2023 any submissions in response to the applicant’s further submissions on which it seeks to rely.
4.     The parties have leave to approach the Commission for a further preliminary conference if necessary.
5.     At the conclusion of the time allowed for submissions the dispute will be
determined ‘on the papers’.”

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    MAC dated 21 February 2017;
(d)    COD 28 March 2017;
(e)    Reconsideration Application;
(f)    attachments to Reconsideration Application (the admissibility of which is dealt with at [34]-[35] hereunder);
(g)    respondent’s submissions dated 20 January 2023;
(h) AALD dated 22 February 2023 with s 78 notice dated 24 February 2021 issued by GIO, and report of Dr Peter Bentivoglio dated 8 February 2021, attached;
(i)    applicant’s supplementary submissions 22 March 2023, and
(j)    respondent’s submissions in reply 28 March 2023.

SUBMISSIONS

The submissions of the parties are not repeated in full. In summary, they are as follows.

Applicant

Reconsideration Application

In the submissions attached to the Reconsideration Application the applicant recites his history of two further surgeries carried out by Dr Christie and Professor Hansen after issue of the COD 28 March 2017, and the assessment of 34% WPI by Dr Riley as a result of injury to the cervical spine. Reference is also made to the assessment of Dr Bentivoglio of 34% WPI in respect of the cervical spine.
The applicant submits that there has clearly been a deterioration in his condition since the COD dated 21 February 2017 [sic, 28 March 2017]. (Comment: the applicant in these submissions is confusing the MAC of Dr Timothy Anderson dated 21 February 2017 with the COD 28 March 2017).
The applicant submits that the decision contained within the MAC was appropriate at the time in relation to diagnosis, causation and WPI. That decision is no longer appropriate or relevant as his condition has deteriorated to the point where he now satisfies the threshold for a ‘worker with highest needs’ according to the assessments of Dr Riley and
Dr Bentivoglio.
In support of his second ground of appeal, the applicant submits that as he is a worker with highest needs and he is entitled to the restoration of weekly payments of compensation which would continue until he attains the age of 68 years, and reasonably necessary medical treatment for the remainder of his life.
The applicant submits that it is not in the interests of justice to deny him access to such benefits, making reference to the objectives of management of workplace injury the system of workers compensation in s 3 of the 1998 Act, and ss 3 (Objectives of Act) and 42 (Guiding principles to be applied to practice and procedure) of the PIC Act.
The applicant submits that there has been no delay in making the Reconsideration Application, that he has no entitlement to appeal the COD 28 March 2017, and that the time for him to appeal the MAC is well expired. The applicant submits that it is “well settled law that in the procedure to rescind the COD is by way of reconsideration request”.
The applicant seeks to rely on the following fresh evidence attached to the Reconsideration Application:
(a)    statement of Mark Bessant dated 11 November 2022;
(b)    letter to GIO requesting confirmation of WPI assessment dated 22 June 2022;
(c) section 78 Notice disputing entitlement to reinstate weekly benefits of compensation dated 8 November 2022;
(d)    medical Report of Dr Stuart Riley dated 9 May 2022;
(e)    medical records of Terrace Central Surgery;
(f)    medical records of William Street Family Practice;
(g)    medical records of Northern Integrated Pain Management;
(h)    medical records of Newcastle Brain & Spine;
(i)    extract of medical records of John Hunter Hospital, and
(j)    medical report of Dr Peter Bentivoglio dated 1 September 2022.
All of this evidence, with the exception of some early handwritten clinical notes and treatment records produced, it appears, by the Terrace Central Surgery and covering the period from about 1999 onwards, post-dates the COD 28 March 2017. The records cover the treatment the applicant has undergone on the injury the subject of the current proceedings. No objection was taken to the admission of this evidence, and as it is an Application for Reconsideration based on deterioration of the applicant’s condition since the COD dated
28 March 2017, are admissible, and admitted into evidence.
In the event that the COD 28 March 2017 is set aside, the applicant seeks an order that the matter be referred back to Dr Anderson for reconsideration pursuant to s 329 of the 1998 Act.

Respondent

Respondent’s submissions 20 January 2023

In support of its submission that the COD 28 March 2017 should not be rescinded pursuant to s 57 of the PIC Act, the respondent draws attention to:
(a) section 327(7) of the 1998 Act which provides that there is to be no appeal of the MAC once the dispute concerned has been the subject of a determination by the Commission, as in that of the COD 28 March 2017, and
(b) section 322A of the 1998 Act which provides that only one assessment may be made of the degree of permanent impairment of an injured worker. That section also provides that the MAC given in connection with that assessment is the only MAC that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned.
The respondent notes that when Dr Bentivoglio reported on the applicant on 8 February 2021 he said that the proposed surgery was dramatic and did not have the potential to significantly affect the applicant’s level of function or pain. For that reason on 21 February 2021 the respondent disputed liability for the proposed surgery, which nevertheless took place on
13 August 2021.
The respondent noted that both Dr Riley on 17 May 2022 and Dr Bentivoglio on
1 September 2022 reported that the surgery did not provide the applicant with any significant improvement in any of his reported symptoms and restrictions. As such, the respondent submits that the shortcomings of such surgery foreshadowed by Dr Bentivoglio have come to fruition.
The respondent noted that, although not funded by the respondent, the surgery has caused an increase in the level of WPI assessed by Dr Riley and Dr Bentivoglio, above the 18% WPI assessed by Dr Anderson in the MAC of 21 February 2017.
The respondent noted the discretion afforded to the Commission to reconsider a COD was considered in Samuel v Sebel Furniture Limited[8] in which Acting Deputy President Roche (as he then was) set out nine specific principles relating to an application for reconsideration, at that time made with reference to s 350 of the 1998 Act, which now finds its equivalent in s 57 of the PIC Act. Those principles continue to apply to the current reconsideration provision [sic, application].
[8] (2006) NSWWCCPD 141 (Samuel).
The respondent notes that it is undisputed that the applicant has undergone further surgery since the COD 28 March 2017, or that there has been a deterioration in his condition since that COD. The respondent however emphasises the dispute as to liability for such surgery.
In reply to the second ground of appeal of the applicant, the respondent submits that it is the clear intention of the legislation to ensure that there is some finality of litigation provided when determining an injured worker’s level of WPI and the consequent entitlement to benefits.

The respondent submits that the applicant would have been aware of the ‘one MAC’ provisions in s 322A, as well as the provision in s 327(7) barring appeal following the issue of a COD confirming the outcome of the MAC at the time he chose to pursue his further lump sum claim in the WCC in 2017. The applicant is not subject to the exception in cl 28D of the Workers Compensation Regulation 2016, as he is not an ‘existing recipient’ and is not entitled to separate assessment of WPI in respect of the s 39 (of the 1987 Act) threshold dispute. The respondent submits that the applicant nonetheless continued with the 1987 proceedings, attending the examination with Dr Anderson resulting in the MAC of
21 February 2017, later confirmed in the COD 28 March 2017.
Notwithstanding the fact that the applicant has now chosen to undergo further surgery that caused a deterioration in his level of WPI, the respondent submits that that alone is not sufficient to outweigh the public interest in the finality of litigation in circumstances where the applicant would have been aware of the final nature of his degree of WPI at the time he commenced the prior Commission proceedings, and when they were finalised.
The respondent submits that the only basis upon which the applicant’s assessment of WPI has increased so as to potentially allow him to satisfy the ‘worker with highest needs’ threshold is the surgery that was disputed by the respondent’s insurer. The respondent submits that now allowing the applicant to seek to rescind the prior COD and appeal and/or reconsider the MAC in this setting does not provide justice between the parties.
The respondent refers to the decision of the Commission in Galea v Colourwise Nursery (NSW) Pty Ltd[9] in the context of whether a COD ought to be revoked in order to enable an appeal of a MAC previously obtained in the context of a s 66 claim then being agitated for the purposes of threshold determinations. The point raised was whether the revocation of the COD would have the effect of revoking orders in relation to the payment of permanent impairment compensation, which was a factor against the exercise of the discretionary power afforded to the Commission.
[9] [2019] NSWWCC 362 (Galea).
If that was the case, the respondent submits that such an outcome would of course significantly undermine the finality of litigation contemplated by the legislation, with s 66(1A) of the 1987 Act expressly providing that only one claim for s 66 compensation can be made (or in this case, one ‘further’ claim post-2012).
The respondent submits that the applicant’s application is silent on the issue of whether he intends to seek further lump sum compensation should the COD be rescinded and he be permitted to seek to reconsider or appeal the MAC. It is the case that the applicant is further agitating a claim for further lump sum compensation, the respondent submits that the application to revoke the COD will significantly undermine the finality of litigation, not only in the context of s 322A, but also by acting in direct contradiction of s 66(1A) of the 1987 Act.
The respondent submits that rescinding the COD in this case would be at odds with the intention of the legislation.
The respondent submits that the Reconsideration Application should be dismissed.

Applicant’s supplementary submissions dated 22 March 2023

The applicant notes that there is no dispute that there has been a deterioration in his condition since he was assessed by Dr Anderson on 21 February 2012 to have an 18% WPI resulting from injury to the cervical spine on 26 June 2003.
The applicant further notes that, pursuant to such deterioration the degree of WPI resulting from injury has increased and is currently 34%. This level of WPI has been assessed by
Dr Riley in his report dated 17 May 2022 and Dr Bentivoglio in his report dated
1 September 2022.
The applicant seeks determination, alternatively further assessment, certification and consequent determination, of his current degree of impairment which substantially exceeds 20% WPI. This will facilitate payment of his entitlements to continuing weekly compensation pursuant to s 39 of the 1987 Act and payment of reasonably necessary medical expenses pursuant to s 60 of the 1987 Act.
Of further relevance is that, given the medical consensus that he has 34% WPI as a result of the subject injury, the applicant qualifies as a worker with highest needs as defined in s 32A of the 1987 Act. This is relevant in barring the respondent’s insurer from subjecting him to a work capacity assessment, an important entitlement under the legislation.
The applicant submits that, in view of the medical consensus, the respondent’s insurer has no legitimate basis to resist formal recognition of the current degree of WPI resulting from the subject injury, and resisting the current application.
The applicant submits that the legislation specifically contemplates deterioration in the condition of a worker, and the attendant increase in the degree of WPI resulting from injury. In this regard, the applicant notes:
(a) section 327(3)(a) of the 1998 Act providing for an appeal and an increase in the degree of WPI in circumstances in which there has been a “deterioration of the worker’s condition that results in an increase in the degree of permanent impairment”, and
(b) section 66A(3) of the 1987 Act where parties have entered into a complying agreement recording the degree of WPI which has resulted from the injury, that empowers the Commission to award additional compensation since the agreement was entered into, if there has been an increase in the degree of permanent impairment beyond that so agreed. It would follow that “an increase in the degree of permanent impairment so agreed” would occur if the condition of the worker had deteriorated since the execution of a complying agreement.
The applicant notes that while the current application does not involve a complying agreement, the relevance of s 66A(3) is in illustrating that, as with s 327(3)(a) of the 1998 Act, the legislature considered, in keeping with the beneficial objects of the scheme, the degree of WPI would be subject to fresh assessment in circumstances of any change in the condition of the injured worker.
In this case the applicant submits that, there has been a deterioration in his condition, and an increase in his degree of WPI as evidenced by the assessments of Dr Riley and Dr Bentivoglio.
The applicant submits that such deterioration, and the attendant increase in the degree of WPI from the subject injury, entitles him to either proceed with an appeal pursuant to s 3237(3)(a) of the 1998 Act, or as an alternative to appeal, ask the Commission to exercise its discretion and refer the matter back to Dr Anderson pursuant to s 329 of the 1998 Act. In order to pursue either alternative, the applicant needs as a preliminary step to seek reconsideration of the COD dated 28 March 2012.
In respect of the nine matters outlined by Roche ADP in Samuel as being relevant to the power of reconsideration vested in the Commission, the applicant submits that:
(a)    the wide discretion of the Commission will be exercised on the basis that:
i.section 327(3)(a) contemplates deterioration in the condition of the worker and an increase in the degree of WPI;
ii.there has been an increase in the degree of WPI;
iii.entitlements flow from that increase;
iv.the legislation has a beneficial purpose;
v.the objectives of the scheme as recorded in s 3 of the 1998 Act include provision of income support during incapacity, payment for permanent impairment and payment of reasonable treatment and related expenses, being fair, and delivering these objectives efficiently and effectively;
(b)    the COD 28 March 2017 is an award, order or determination that may be reconsidered having regard the definition of the word ‘decision’ in s 352 of the 1998 Act, acknowledging that such word is not defined in s 350;
(c)    there has been no delay in seeking reconsideration as the deterioration in his decision since March 2017 has been gradual. He had surgery on
15 September 2017 and 13 August 2021, and was assessed as having 34% WPI by Dr Riley on 17 May 2022;
(d)    this is not a case of indefinite litigation, as there has been a change in his circumstances since the COD 28 March 2017, and his statutory entitlements need to be reviewed having regard to that change, in particular the deterioration in his condition resulting in his current degree of WPI;
(e)    evidence as to the current degree of WPI was obviously not available at the time the COD 28 March 2017 was issued;
(f)    correction of errors of fact, law or discretion made by Arbitrators is not relevant to the current application;
(g)    Anshun estoppel (Port of Melbourne Authority v Anshun[10]) does not apply to the current application because the applicant did not, in 2017, refrain from making a claim based upon the degree of impairment that would be assessed following operations in September 2017 and August 2021. He proceeded in 2017 on the basis the degree of impairment at that time, and now seeks fresh determination of his current degree of impairment in the wake of deterioration in his condition since the issue of the COD;
(h)    a mistake or oversight by a legal advisor will not give rise to a ground for reconsideration is not applicable in the current case, and
(i)    the Commission has a duty to do justice between the parties according to the substantial merits of the case incorporates a duty to facilitate entitlements which flow from his current degree of impairment.
[10] [1981] HCA 45; (1981) 147 CLR 589.
The applicant asserts that the respondent’s submission that it disputed the surgery performed on 13 August 2021 on the basis that “it was unlikely to assist the worker’s level of function or pain” is not relevant to the assessment of the applicant’s current degree of impairment which both Dr Riley and Dr Bentivoglio have assessed as resulting from the injury.
The applicant rejects the respondent’s submission that reconsideration of the COD dated
28 March 2017 and assessment of the current degree of impairment offends the principle of finality of litigation. The applicant refers to ss 327(a) and/or (b), and 329 of the 1998 Act, or revised agreement of permanent impairment pursuant to s 66A(3) of the 1987 Act. The applicant submits that the Commission’s power under s 57 of the PIC Act to reconsider any matter also confirms that further determination of entitlements is feasible in order to address evidence of a change in circumstances following an earlier decision.
The applicant relies on the decision of Member Wright in Kerry Blake v Slyder Pty Ltd Dominos Pizza Goulburn[11], in respect of the form of the orders he seeks.
[11] 3263/16.
The applicant submits that given that there is no dispute as to the current degree of WPI, it is not necessary for the Member to remit the matter to the President for referral to Dr Anderson for further medical assessment or reconsideration. It would be appropriate for the Member, having rescinded the COD 28 March 2017, to issue a new COD recording that 34% WPI has resulted from the injury to his cervical spine on 26 June 2003 in the course of his employment with the respondent.
The applicant sets out the form of orders that he submits should be made, either determining the degree of 34% WPI resulting from injury to the cervical spine on 26 June 2003, or alternatively remitting the matter to the President for referral to Dr Anderson for further assessment of permanent impairment pursuant to s 329 of the 1998 Act, as an alternative to an appeal pursuant to s 327 from the MAC dated 21 February 2017.

Respondent’s submissions in reply dated 28 March 2023

The respondent refers to the decision of the High Court in Adco Constructions Pty Limited v Goudappel[12] in which the Court said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the WCA’s remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified …”
[12] [2014] HCA 18 (Goudappel).
The respondent submits that s 322A of the 1998 Act is one of those provisions that has been inserted into the Act as a restrictive, as opposed to a beneficial provision. The respondent refers to Cram Fluid Power Pty Limited v Green[13] to submit that it should be accepted that the 2012 amendments, which incorporate s 322A of the 1998 Act, disclose a cost saving objective.
[13] [2005] NSWCA 250 (Green).
The respondent accepts that in the event that the Commission ultimately determines to rescind the COD 28 March 2017, it agrees with the applicant that it would not be necessary for the matter to be remitted to the President for referral for further medical assessment, and that it would be appropriate for the Member to issue a new COD as proposed by the applicant with the correct date, COD 28 March 2017.
The respondent nevertheless relies on its earlier submissions to assert that the Commission ought not be minded to make orders rescinding the COD 28 March 2017.

FINDINGS AND REASONS

Surgery

The respondent emphasises that it declined liability for the surgery carried out on
13 August 2021, referred to at [17]-[18] above, on the ground that it was not reasonably necessary as a result of injury on 26 June 2003. It notes that this surgery caused an increase in the level of WPI as assessed by Dr Riley and Dr Bentivoglio.
In the report dated 1 September 2022, Dr Bentivoglio was asked to provide an assessment of WPI apportioning it between the WPI resulting from the work related injury and the WPI that results from any previous injury, pre-existing condition or abnormality in accordance with s 323 of the 1998 Act. The doctor was asked not to provide an assessment of WPI if maximum medical improvement (MMI) has not been reached. Dr Bentivoglio then gave an assessment of 34% WPI.
When asked to comment on the permanent impairment methodology applied by Dr Riley,
Dr Bentivoglio said:
“I have reviewed the assessment by Dr Riley, and I agree with it and we both came to the same whole person impairment. Prior to 2003, he never had any neck issues and all his neck issues have developed as a consequence of that work injury starting with a significant disc protrusion at the C6/7 level. I do not believe he has relied on any inconsistent history or incorrect history, and basically I agree with his whole person impairment.”
Therefore, notwithstanding that Dr Bentivoglio was of the opinion that the surgery carried out by Dr Domazet on 13 August 2021 was not reasonably necessary as a result of injury on
26 June 2003, his assessment of WPI is in accordance with that of Dr Riley. It is clear that the 34% WPI assessed by Dr Riley and Dr Bentivoglio is as a result of injury to the cervical spine on 26 June 2003.
Relevant matters, according to the criteria of reasonableness, as to whether or not surgery is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act, are set out by Roche DP at [88] of Diab v NRMA Insurance Ltd[14] as follows:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and   likely to be effective.
[14] [2014] NSWWCCPD 72.
At [89], the Deputy President said:
“With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
In his report dated 8 February 2021 Dr Bentivoglio said that the appropriateness and potential effectiveness of the proposed surgery was low, and he gave Mr Bessant about a 50% chance of improvement in his symptoms. He also noted that Mr Bessant was “…in a desperate state and is willing to try anything”, all previous treatment having failed to give relief.
In his report dated 1 September 2022 Dr Bentivoglio noted that since his last review the applicant had undergone the operation which unfortunately had not been successful.
Mr Bessant still had significant neck pain, left arm pain and worsening left hand function. He still had evidence of the C7 radiculopathy.
It is not necessary for the purpose of the current proceedings to make any determination if the surgery carried out on 13 August 2021 was reasonably necessary as a result of injury on 26 June 2003. The fact is that the applicant has now 34% WPI as a result of that injury. That is a matter that must be considered, along with the other evidence, in deciding whether the Commission should exercise its discretion to rescind the COD dated 28 March 2017.

Beneficial legislation

The respondent submits that, having regard to what the High Court said in Goudappel, and what the Court of Appeal said in Green, that the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Act), which inserted s 322A into the 1998 Act, disclose a cost saving measure.
In Goudappel, French CJ, Crennan, Kiefel and Keane JJ said at [29]:
“It can be accepted, as was put by counsel for Mr Goudappel, that the WCA's remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.”
The Court in that case was discussing amendments to the 1987 Act introduced by the 2012 Act.
The respondent submits that, relying on what the Court of Appeal said in Green, it should be accepted that the amendments introduced by the 2012 Act, incorporating the insertion of
s 322A into the 1998 Act, disclose a cost saving objective.
In Green, the Court was dealing with the insertion of s 66(1A) into the 1987 Act, and dealing with a claim by a worker for lump sum compensation pursuant to s 66 of that Act finalised before the commencement of the 2012 Act on 19 June 2012 (the 2010 Claim), and a further claim for lump sum compensation made in 2013. The Court held that the 2010 Claim was
Mr Green’s one claim for lump sum compensation and s 66(1A) disentitled him from making his 2013 claim for further lump sum compensation.
Section 2A(2) of the 1987 Act states that it is to be construed with, and as if it formed part of, the 1998 Act. Accordingly reference in the 1987 Act to “this Act” includes a reference to the 1998 Act. Section 2A(3) provides that in the event of an inconsistency between the 1987 Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.
Gleeson JA said at [122] in Green that:
“It should be accepted that the 2012 amendments disclose a cost-savings objective. Part of the reforms to the existing scheme under the 1987 and 1998 Acts was to disentitle workers from making more than one claim for lump sum compensation. The Court must give effect to this legislative intention, notwithstanding the detrimental impact on injured workers.”
I accept that the insertion of s 322A into the 1998 Act discloses a cost saving objective. That is another matter to be considered when considering the discretion that the Commission has to rescind the COD dated 28 March 2017.

Recission of the COD dated 28 March 2019

Section 327(3)(a) of the 1998 Act contemplates an appeal against a medical assessment on the ground of deterioration in the worker’s condition that results in an increase in the degree of permanent impairment. Sub-section (b) refers to the availability of additional relevant information not available, and that could not reasonably have been obtained before the medical assessment appealed against.
Section 327(6) of the 1998 Act states that the President may refer a medical assessment for further assessment under s 329 as an alternative to an appeal (but only if the matter could otherwise have proceeded on appeal under that section).
The applicant in this case had no grounds for appealing the MAC of Dr Anderson under
s 327(3)(a) at the time if its issue. His condition has deteriorated since that time.
Section 327(7) states:
“There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.”
The applicant relies on s 327(3)(a) of the 1998 Act, and also on s 66A of the 1987 Act which deals with complying agreements, to show that the workers compensation legislation contemplates deterioration in a worker’s condition, which has occurred in this case.
Section 66A(3) of the 1987 Act allows the Commission to award compensation additional to the compensation payable under a complying agreement entered into between the parties pursuant to sub-section (2) if inter alia, since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.
In this case, there has been a complying agreement between the parties, referred to in [3] above, although the Reconsideration Application does not involve that agreement. The applicant refers to s 66A(3) as an illustration that, in the same way as s 327(3)(a) of the 1998 Act, the legislature considered in keeping with the beneficial objects of the scheme the degree of WPI would be subject to fresh assessment in circumstances of any change in the condition of the injured worker.
For the applicant to succeed in this case, the orders in the COD 28 March 2017 must rescinded. Section 57 of the PIC Act gives the Commission discretion to do this. This
sub-section replaces s 350(3) of the 1998 Act, which was discussed by Roche ADP in Samuel. The applicant’s submissions on the observations of Roche ADP in that case are set out at [61] above. The respondent’s submissions are at [41], [43], [45], and [47]-[49] above. The surgery issue raised by the respondent at [46] has been discussed above.
I do not accept the respondent’s submission noted at [44] above that the applicant,
“…would have been aware of the ‘one MAC’ provisions in s 322A, as well as the provisions in s 327(7) barring appeal following the issue of a COD confirming the outcome of the MAC at the time he chose to pursue his further lump sum claim in the Commission in 2017.”
There is no evidence to this effect, The applicant makes it clear in his submissions that he is pursuing the Reconsideration Application because of his now undisputed level of 34% WPI as a result of the injury of 26 June 2003, in order to facilitate payment of his entitlements to continuing weekly compensation and medical expenses pursuant to ss 39 and 60 of the 1987 Act. The acceptance that the applicant is a worker with highest needs as defined in s 32A of the 1987 Act is also relevant in barring the insurer from subjecting the applicant to a work capacity decision.
In any event, even if the applicant was aware of the ‘one MAC’ provisions in s 322A and
s 327(7) of the 1998 Act, I do not think that is a matter adverse to him in seeking the exercise of the discretion vested in the Commission under s 57 of the PIC Act. His situation has changed quite significantly since that time.
The respondent submits that the applicant’s application is silent on the issue of whether he intends to seek further lump sum compensation should the orders in the COD dated
28 March 2017 be rescinded, and I accept that. However there is no indication that the applicant does now seek further lump sum compensation. The applicant’s submission referred to in [95] above as to why he is pursuing the Reconsideration Application would suggest that this is not the case.
I accept the opinion that Arbitrator Harris (as he then was) expressed in Galea, referred to at [47] above, that any higher assessment of WPI in that case provided by an Appeal Panel if a Certificate of Determination was set aside did not, or would not necessarily, amount to an entitlement to additional compensation for lump sum impairment pursuant to s 66 of the 1987 Act.
In the current case, setting aside the COD 28 March 2017 would not revoke an order for the payment of lump sum compensation to the applicant, which was a submission made by the respondent’s solicitors in Galea as a factor mitigating against the exercise of the discretionary power vested on the WCC at that time under s 350 of the 1998 Act, and which is now vested in the Commission under s 57 of the PIC Act. Mr Bessant has received lump sum compensation for lump pursuant to the complying agreement registered with the WCC on 21 December 2004.
I accept the applicant’s submissions referred to at [61. (a)-(d) above]. Evidence as to the current degree of WPI was obviously not available at the time the COD 28 March 2017 was issued; the applicant’s degree of WPI has increased significantly since then. This is not a case of indefinite litigation, but a recognition of the applicant’s change in his circumstances, and the sequelae of the injury of 26 June 2003, having regard to the workers compensation legislation. That legislation is beneficial, notwithstanding that the insertion of s 66A(1) into the 1987 Act and s 322A into the 1998 Act by the 2012 Act discloses a cost saving objective. There is no time limit imposed for an appeal to be brought by an injured worker under
s 327(3)(a) of the 1998 Act, as there is with an appeal under s 327(3)(c) or (d). Section 66A(3) of the 1987 Act contemplates an increase in the degree of permanent impairment beyond what was agreed in a complying agreement entered into between parties to such an agreement.
The Commission has a duty to do justice between the parties according to the substantial merits of the case.
In this matter the Commission should exercise the discretion vested in it under s 57 of the PIC Act and rescind the orders in COD 28 March 2017.
The parties agree that, in the event that the Commission finds in favour of the Applicant on the Reconsideration Application, it is not necessary for the matter to be remitted to the President for referral for further medical assessment under s 329 of the 1998 Act. In that circumstance the Commission therefore makes orders in accordance with those proposed by the applicant in his supplementary submissions 22 March 2023.

SUMMARY

Pursuant to s 57(1) of the PIC Act the COD 28 March 2017 is hereby rescinded.
It is determined that the 34% WPI sustained by the applicant has resulted from the injury received by him to the cervical spine on 26 June 2003 in the course of his employment with the respondent.

Reconsideration Application pursuant to s 57 of the Personal Injury Commission Act 2020 (PIC Act) dated
9 March 2023 (Reconsideration Application) p 463.

[2023] NSWPIC 167

17 April 2023