Bond v Blacktown Area Community Centres Incorporated

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bond v Blacktown Area Community Centres Incorporated [2025] NSWPIC 453
APPLICANT:	Doreen Bond
RESPONDENT:	Blacktown Area Community Centres Inc.
MEMBER:	Catherine McDonald
DATE OF DECISION:	3 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); permanent impairment compensation assessed and medical appeal undertaken; proceedings discontinued by consent before compensation paid; application for reconsideration of certificate of determination and medical assessment certificate to allow for assessment of additional claims; principles relevant to reconsideration; Samuel v Sebel Furniture, and Inner West Council v McQuade; availability of medical appeal; Sleiman v Gadalla Pty Ltd, and Lovelee v Sydney International Container Terminals; need for claim and medical dispute; Skates v Hills Industries; one assessment; section 322A of the 1998 Act, Singh v B & E Poultry Holding Pty Ltd, and Secretary, Department of Education v Connolly; Held – reconsideration not possible in respect of claims not previously made; reconsideration in respect of remaining claim declined in exercise of discretion.
DETERMINATIONS MADE:	The Commission determines: 1. The application to reconsider the Certificate of Determination dated 17 July 2023 is granted. 2. I set aside the Certificate of Determination dated 17 July 2023. 3. The application to reconsider the Medical Assessment Certificate is declined. 4. Pursuant to s 66 of the Workers Compensation Act 1987 the respondent is to pay the applicant $179,025 in respect of 50% whole person impairment. 5. I grant liberty to apply in the event that the calculation in order 4 is incorrect. A statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Doreen Bond was employed by Blacktown Area Community Centres Inc (Blacktown) when she suffered an injury on 16 May 2016. Ms Bond tripped, striking her head on a brick pillar. She suffered multiple injuries and, in the years since, has undergone extensive surgery.
Ms Bond claimed permanent impairment compensation in 2022. She commenced proceedings in the Personal Injury Commission (Commission). Dr Anderson, a Medical Assessor was asked to assess her cervical spine, right upper extremity, lumbar spine, right lower extremity, left lower extremity and scarring. On 29 September 2022 the Medical Assessor issued a Medical Assessment Certificate (MAC) in which he assessed 50% whole person impairment (WPI).
Ms Bond lodged an appeal against the medical assessment. While the Appeal Panel allowed the appeal and revoked the MAC, the overall assessment of 50% WPI did not change. The Appeal Panel issued its decision, including a new MAC, on 29 May 2023.[1]
[1] Bond v Blacktown Area Community Centres Inc [2023] NSWPICMP 227.
Before orders were made giving effect to the determination of the Appeal Panel, a Member of the Commission issued a Certificate of Determination (COD) by consent on 17 July 2023 stating that the proceedings were discontinued and noting that no COD had been issued with respect to WPI.
On 12 March 2024, in matter W720/24, Ms Bond and Blacktown entered into consent orders that determined that Ms Bond suffered a consequential condition in her right hip, as a result of the injury in 2016. Blacktown agreed to pay reasonably necessary treatment expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of right total hip replacement.
On 29 May 2025 Ms Bond filed an application for reconsideration of both the COD and the Appeal Panel’s MAC. She seeks that the COD be set aside so that the MAC can be reconsidered and so that she can be assessed in respect of WPI arising from her right hip and knee and from sleep apnoea. Blacktown opposes the applications.

PROCEDURE BEFORE THE COMMISSION

The applications for reconsideration are contained in relatively short submissions dated 29 May 2025 signed by Mr Horan of counsel and Ms Bond’s solicitor, Mr Dababneh. They are accompanied by more than 400 pages of documents said to comprise “additional relevant information/fresh evidence”. The documents were not indexed.
Blacktown relied on submissions prepared by Ms Malone, solicitor, in respect of the reconsideration of the COD dated 23 June 2025. Those submissions disclose that Ms Bond had made an application on 30 April 2025 for reconsideration of the Appeal Panel’s decision which was rejected by the Commission, because of the discontinuance of the proceedings on 17 July 2023.
Blacktown also relied on submissions prepared by Ms Warren of counsel dated 23 May 2025, in respect of the earlier application, opposing the MAC being set aside.
The matter was listed for preliminary conference on 17 July 2025 when Ms Huang, solicitor, appeared for Ms Bond and Ms Malone appeared for Blacktown. The parties told me that they anticipated that the applications would be dealt with on the papers now filed and both consented to that course. I directed that Ms Bond file an indexed bundle of documents, which was done.
Blacktown’s submissions referred to the decision in Pollard v Toll Holdings Pty Ltd.[2] That decision was the subject of an appeal and the parties were given leave to file further submissions when the appeal decision[3] was published on 6 August 2025.
[2] [2024] NSWPIC 530.
[3] Pollard v Toll Holdings Pty Ltd [2025] NSWPICPD 58.
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 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.

EVIDENCE

I have listed the documents attached to the reconsideration application to highlight the limited evidence on which Ms Bond relied for these applications. They are:
(a)    MAC of Dr Anderson dated 6 October 2022;
(b)    statement dated 10 March 2025;
(c)    medico-legal report of Dr Eugene Gehr dated 15 November 2023;
(d)    referral to Dr Coffey dated 15 January 2024;
(e)    medical report of Dr Sipeli dated 23 February 2024;
(f)    medical report by Dr Simon Coffey dated 13 November 2024;
(g)    clinical notes and reports of Dr Coffey for the period January 2024 to October 2024 related to the worker’s right hip and right knee conditions and treatments in 2024 for those conditions including the right total hip replacement surgery on 21 May 2024;
(h)    medical report of Dr K Howison dated 16 December 2024;
(i)    sleep study report (polysomnography report) dated 5 November 2024;
(j)    report of Dr Fiona Foo dated 25 November 2024;
(k)    reports by Dr Andrew Dimitri dated 16 December 2024;
(l)    clinical notes of Dr Fuiaava Sipeli as at 26 June 2023;
(m)     Certificate of Determination in matter W720/24.
In addition to those documents, I have had regard to the following documents filed in these proceedings:
(a)    Application to Resolve a Dispute (ARD);
(b)    Reply;
(c)    Ms Bond’s Application to Admit Late Documents dated 5 July 2023, and
(d)    Published Medical Appeal Panel decision dated 29 May 2023.
Ms Bond prepared a detailed statement dated 31 August 2021. She said that she sustained injuries to her bilateral hips and that she first saw Dr Coffey in respect of both hips in 2018.
Dr Tait undertook lumbar fusion surgery from L3 to S1 in November 2019.
In her statement filed with the ARD, Ms Bond described the surgery to her back and said she consulted Dr Coffey again in February 2021. Dr Coffey performed a left total hip replacement in November 2021. Throughout the statement she referred to the pain in both hips.
Dr Coffey reported to Ms Bond’s solicitors on 25 March 2021 and said he had been treating Ms Bond since 22 November 2018. His diagnoses were in respect of Ms Bond’s left hip, lumbosacral spine and right shoulder, though he noted that Ms Bond experienced pain in both knees and that her right knee had been associated with locking and giving way.
Ms Bond’s claim for permanent impairment compensation was made on 31 May 2022 and based on a report by Dr Gehr dated 26 May 2022. Ms Bond claimed compensation for 67% WPI and the components of the claim are not set out in the letter. Dr Gehr’s assessment was comprised of 5% WPI for the cervical spine, 27% WPI in respect of the lumbar spine, 2% WPI for scarring, 11% for the right upper extremity (shoulder), 30% WPI for the left hip, 12% WPI for the right lower extremity (knee) and 9% WPI for right plantar fasciitis. Dr Gehr was asked to assess Ms Bond’s right knee and said that there was no rateable impairment.
The pleading of injury in the ARD is confusing and reads:
“Injury to the lumbar, spine, cervical spine, right upper extremity, right, lower extremity, and left lower extremity
bilateral knees, bilateral
Right shoulder, cervical and lumbar spine, left hip.
On 16 May 2016, the applicant attended an exposition Doonside Public School where she has set up a stall. When the applicant entered the school, she walked around the side of the building when she tripped and fell on a raised concrete ledge. The applicant fell forward, striking a head on a brick pillar and landing heavily on her right knees before falling to her side. She tried to break the phone with her right hand. As a result of the incident, the applicant sustained injury to her head, lumbar spine, cervical spine, thoracic spine, right hand/shoulder, bilateral knees and bilateral hips. The applicant’s inability to mobilise with a normal gate following the fall also exacerbated the injuries to her bilateral hips.” [sic].
Blacktown relied on reports by Dr Courtenay dated 28 June 2021 and 3 August 2022. Though he assessed 34% WPI by reference to Ms Bond’s cervical spine, lumbar spine, left hip, right shoulder and scarring, Dr Courtenay did not consider that Ms Bond’s condition had reached maximum medical improvement.
In his first report, Dr Courtenay reviewed MRI scans of both knees performed in November 2020. The right knee showed “evolving OA of the lateral tibiofemoral compartment”. He supported the need for surgery to Ms Bond’s left hip.
At the beginning of the MAC dated 29 September 2022, the Medical Assessor set out the body parts/systems referred to him being:
(a)    cervical spine;
(b)    right upper extremity;
(c)    lumbar spine;
(d)    right lower extremity;
(e)    left lower extremity, and
(f)    scarring.
The Medical Assessor assessed 50% WPI comprised of 5% WPI for Ms Bond’s cervical spine, 23% WPI for the lumbar spine (after a deduction of one-tenth under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) , 4% WPI for the right upper extremity (shoulder), 0% for the right lower extremity, 27% for the left lower extremity (after a one-tenth deduction) and 2% for scarring.
The MAC was the subject of a medical appeal in respect of Ms Bond’s lumbar spine only. Ms Bond said that the Medical Assessor should have assessed 3% in respect of her activities of daily living (rather than 2%) and should not have made a one-tenth deduction under s 323 of the 1998 Act. The Appeal Panel found that the Medical Assessor had made a demonstrable error on both grounds and undertook a re-examination. On 29 May 2023 the Appeal Panel set aside the MAC and issued a new certificate. It determined that it was appropriate to allow 3% for the impact of the lumbar spine injury on Ms Bond’s activities of daily living and that a one-tenth deduction was appropriate because extensive pre-existing degenerative change contributed to the need for surgery and the current impairment. The primary assessment in respect of the lumbar spine was increased to 26% WPI before the s 323 deduction but there was no change in overall assessment of 50% WPI.
I understand from my review of the documents that Ms Bond has commenced other proceedings in the Commission, being those with respect to liability for her right total hip replacement and possibly with respect to liability for left shoulder surgery. I have not been provided with, or asked to consider, those files, beyond consent orders dated 12 March 2024 to the effect that Ms Bond suffered a consequential condition in her right hip and that Blacktown was liable to pay the costs of hip replacement surgery.
I do not have any documents which show the outcome of proposed proceedings with respect to Ms Bond’s left shoulder. I note that she does not seek an assessment of permanent impairment resulting from her left shoulder in these proceedings.
The documents in the file referred to me do not include a letter setting out the further claims Ms Bond now makes. The Application to Admit Late Documents dated 5 July 2023 contains some correspondence in mid 2023 foreshadowing a claim for compensation in respect of her left shoulder. Ms Bond’s solicitor said that she sought to amend the permanent impairment compensation claim made on 31 May 2022. Liability for surgery was disputed. Before that issue was resolved, the surgery to Ms Bond’s right hip was proposed.
The proceedings were discontinued on 17 July 2023.
On 30 June 2023 Ms Bond served a report from Dr Coffey dated 29 June 2023 and her solicitors wrote to the Commission saying that a claim for the cost of surgery had been made. The letter noted that if the claim was accepted and surgery undertaken then Ms Bond would have further WPI.
Dr Gehr reported to Ms Bond’s solicitors on 15 November 2023 in support of a claim for s 60 expenses for right hip surgery. Dr Gehr saw reports from Dr Coffey dated 18 July and 15 August 2023, which do not appear in Ms Bond’s application. The first report described an MRI scan dated 6 July 2023 which showed advanced osteoarthritic change in Ms Bond’s right hip.
Ms Bond was referred to Dr Coffey on 15 January 2024 in respect of her right knee. Her weight was noted as 121.6 kg. On 23 February 2023, Ms Bond’s general practitioner, Dr Sipeli, wrote a report in support of the claim for s 60 expenses for right hip surgery. Dr Sipeli said that Ms Bond’s movements were limited during COVID-19 lockdowns and the pain became worse with increased mobility in 2023 when lockdowns eased.
The first report from Dr Coffey in Ms Bond’s application for reconsideration is dated 21 March 2024 to Dr Sipeli. Dr Coffey said that Ms Bond experiencing increasing pain in the right leg. He understood that there has been approval for surgery to the right hip and Ms Bond’s knee had become more painful over the last month. He said that knee replacement may be required, but the hip surgery should be undertaken first. The surgery took place on 21 May 2024.
On 13 November 2024 Dr Coffey wrote to Ms Bond’s solicitors, responding to their request for an assessment of WPI in respect of her right leg. He assessed a fair result as a result of right total hip replacement, resulting in an assessment of 20% WPI. He assessed her right knee by reference to the loss of cartilage interval at 20% WPI. In the table at the end of the report, he made a one tenth deduction from each assessment. Dr Coffey combined those assessments with those made by the Medical Assessor to reach 65% WPI. Though there is no material impact, he did not use the primary assessment of 26% WPI for the lumbar spine as a result of the medical appeal. As Blacktown’s submissions correctly point out, Dr Coffey did not combine the assessments in respect of Ms Bond’s right lower extremity before converting to WPI.
The application for reconsideration contains only Dr Coffey’s notes from January to October 2024. Dr Coffey’s notes in the ARD cease as at 21 July 2021 so that the notes for the period when Ms Bond began to complain of right hip and knee pain have not been provided to the Commission.
Ms Bond said that she suffered coronary symptoms when she was hospitalised for her right knee replacement. She was referred to Dr Foo, cardiologist, who ordered a sleep study, which was carried out on 5 November 2024. At that time Ms Bond weighted 120 kg. The study was reported by Dr Serinel as revealing mild obstructive sleep apnoea.
On 25 November 2024 Dr Foo said that the sleep study showed that Ms Bond had only mild sleep apnoea. A continuous positive airway pressure (CPAP) machine was recommended but that Ms Bond had opted for weight loss injections. Dr Foo recorded that Ms Bond’s hip was better but that a knee replacement was proposed. She also recorded that Ms Bond had gained significant weight – that she weighed 90 kg at the time of her back operation, 110 kg at the time of the left hip surgery and 120 kg at the time of the right hip replacement. Dr Foo prescribed medication (Wegovy) to assist with weight loss.
Dr Howison, ear, nose and throat surgeon saw Ms Bond at the request of her solicitors and reported on 16 December 2024. He said that her weight “at the time” was 89 kg and it had increased to 120 kg. He did not say what time he was referring to. Dr Howison said that Ms Bond had chronic obstructive sleep apnoea, and requires a CPAP machine. On examination, he said her nasal architecture was normal, as was her nasal mucosa. Her post nasal space, larynx and pharynx were also normal. Dr Howison considered that Ms Bond’s obstructive sleep apnoea was a result of weight gain secondary to the injury in 2016.
Dr Dimitri, respiratory and sleep physician, reported to Ms Bond’s solicitors on 16 December 2024 after a telehealth consultation. He recorded that Ms Bond’s weight at the time of the injury was 90 kg and that it was now 122 kg. Before the injury Ms Bond had normal sleep but her sleep is now extremely broken due to chronic pain. He said there was overall minor destructive sleep apnoea, which became moderate in REM sleep and that Ms Bond declined CPAP therapy. Dr Dimitri diagnosed exacerbation of pre-existing sleep apnoea due to weight gain after the injury, as well as insomnia due to chronic pain. He assessed 18% WPI due to the sleep disorder and deducted 3% for pre-existing sleep apnoea, reaching a total of 15% WPI. He noted that Dr Howison had not found any structural cause from Ms Bond’s sleep apnoea. Dr Dimitri did not explain why he made a 3% deduction.
Ms Bond’s statement dated 10 March 2025 was prepared for the purpose of the reconsideration application. She said that she instructed her solicitors to discontinue the proceedings because she was worried that she may need further surgery and, at that time, was particularly concerned about her left shoulder. She said that since being examined by the Medical Assessor “my right hip and right knee conditions have deteriorated.” She said that she underwent a right total hip replacement on 21 May 2024 and that Blacktown’s insurer “was ordered by consent” to pay for the surgery on the basis that she had suffered a “consequential right hip injury”.
Ms Bond said that she has experienced a deterioration in her sleep since the MAC and “I was diagnosed with a sleep apnoea condition due to weight gain insomnia from chronic pain associated with my work injuries in November 2024.” Ms Bond said that in late 2020 her solicitor obtained medical evidence of a deterioration and additional WPI assessment from Dr Coffey and an assessment for the sleep apnoea condition based on reports from “my treater”, Dr Andrew Dimitri, and ear, nose and throat specialist, Dr Howison.
Providing further details about her right knee injury, Ms Bond said that she walked with a limp as a result of her left hip injury and back surgery. She described her symptoms and said that when she was assessed for the MAC she did not know that her right knee condition would deteriorate. If she had known, she said she would not have applied for medical assessment in 2022. Ms Bond described the pain in her right hip and said that she would not have “applied for the MAC” in 2022 if she had known her condition would deteriorate.

With respect to sleep apnoea, Ms Bond said:
“As a result of my symptoms, I have reduced my mobility and no longer leave the house as much. I spend most of my day sitting down due to the chronic pain. Prior to the subject accident, I weighed 90kg. I currently weigh 122kg. This has also negatively affected my sleep…
During my hip replacement surgery in May 2024, I experienced heart complications, and was admitted to the Coronary Care Unit for care and treatment. I was treated by cardiologist, Dr Fiona Foo whilst in the hospital and saw her on one occasion after I was discharged. Dr Foo referred me for sleep studies which occurred on 5 November 2024. The sleep study revealed that I am suffering from obstructive sleep apnoea, which I have developed due to the weight gain in chronic pain.
Dr Foo recommended I use a CPAP machine. However, I would prefer to take weight loss injections. As such, Dr Foo provided me with a prescription for Wegovy 0.25 mg to aid my weight loss and hopefully assist my sleep apnoea. I have requested approval of the injections from the workers compensation insurer.”

Previous medical records

Ms Bond has consulted doctors at Windsor Street Family Practice since at least 2005. References to her pre-injury weight are sparse. On 22 August 2005 Dr Sipeli recorded that she weighed 95kg. On 24 January 2016, four months before the injury, Dr Sipeli noted that Ms Bond had been trying to lose weight and recorded her weight as 110kg. There is no reference to her weight in the period between that consultation and the injury.
For a period after the injury, Ms Bond also saw Dr Cameron as a general practitioner. He did not record her weight.
On 13 April 2022 Dr Deshpande, pain specialist, recorded that she had discussed weight loss strategies with Ms Bond.
There are limited references in the treating doctors’ notes to Ms Bond’s issues with sleep.
Dr Gehr referred to a note by Dr Cameron dated 14 August 2018 in which he recorded that Ms Bond was “not sleeping.” In a report dated 28 November 2019, Dr Cameron said that Ms Bond’s symptoms as a result of multiple injuries suffered included poor sleep and chronic pain.
Ms Bond saw Dr Rastogi, psychiatrist, who reported for the first time on 16 October 2018 to Dr Cameron. She recorded that Ms Bond experienced poor sleep with early morning awakening and acute on chronic pain. Dr Rastogi prescribed Valdoxan for sleep and depression.
On 20 December 2018 Dr Deshpande, pain specialist, recorded that the medication had made an improvement to Ms Bond’s mood and sleep. In a report dated 5 February 2020, Dr Deshpande noted that Ms Bond’s sleep had improved since lumbar fusion surgery in November 2019.

SUBMISSIONS

Ms Bond

Mr Horan prepared submissions on behalf of Ms Bond dated 29 May 2025. The submissions in support of the reconsideration of the COD dated 17 July 2023 are very brief. Mr Horan said that Ms Bond seeks to restore the proceedings for the purpose of reconsideration of the MAC issued by the Appeal Panel on 29 May 2023. He said that the submissions in support of reconsideration of the MAC should be considered to support the reconsideration of the COD and, if that occurs, in reconsideration of the MAC.
The “grounds for reconsideration” relied on are the deterioration of Ms Bond’s condition and the availability of additional information that results in an increase in the assessment of permanent impairment from 50% to 71%. The impairment of Ms Bond’s right hip has increased because of the total hip replacement surgery. Ms Bond said that her right knee has deteriorated and the deterioration is supported by Dr Coffey’s report dated 13 November 2024. She claims that she has suffered an exacerbation of pre-existing sleep apnoea due to weight gain and chronic pain and the claim is supported by the reports of Dr Howison and Dr Dimitri.
Mr Horan submitted that there are proper grounds for reconsideration of the MAC under s 329 of the 1998 Act. The first is that the reconsideration is in the interests of justice, there having been a deterioration. That submission is not developed.
The second ground relied on is the availability of additional relevant information that results in an increase of permanent impairment, which was not available when the MAC was issued. The deterioration is substantial and the increase in monetary terms is also substantial.
Mr Horan submitted that, but for the Medical Appeal that Ms Bond had already pursued, Ms Bond would have had a “statutory right” to appeal Dr Anderson’s MAC under ss 327(3)(a) and (b) of the 1998 Act. The revocation of that MAC as a result of the appeal means that Ms Bond cannot satisfy s 327(2) of the 1998 Act, referring to Lovelee v Sydney International Container Terminals[4] (Lovelee) and therefore cannot bring a medical appeal. Mr Horan noted that Ms Bond would have satisfied s 327(7) because there had been no determination of the Commission and that the grounds of appeal in s 327(3)(a) and (b) were not subject to a time limit. He said it was a matter of fairness that Ms Bond be granted a reconsideration where no appeal is open to her and that any prejudice to Blacktown is outweighed by Ms Bond’s interests.
[4] [2025] NSWSC 377.
Turning to the question of delay, Mr Horan said that Ms Bond had followed a proper process of giving notice of her intention to amend the claim on 18 November 2024, served medical evidence and obtained counsel’s advice, which had changed after the decision in Lovelee in April 2025. The letter dated 18 November 2024 was not attached to the application for reconsideration.
The orders sought were that the reconsideration be granted and that the matter be referred to Dr Anderson and/or another suitably qualified Medical Assessor. In the alternative, referral to another Appeal Panel was sought.
The submissions were not substantially developed and no detailed reasons were given to support the orders. There is no reference to case law other than Lovelee.

Blacktown

Blacktown relied on two sets of submissions. Ms Warren of counsel prepared submissions opposing reconsideration of the MAC, in response to the earlier application. Ms Malone’s submissions dated 23 June 2025 explain the background and respond to the application to reconsider the COD.
With respect to the COD, Blacktown said it understood that the application is made under s 57 of the Personal Injury Commission Act 2020 (the 2020 Act) and Procedural Direction WC7. An earlier application to reconsider the Appeal Panel’s MAC was rejected because of the COD. Ms Malone said that Ms Bond’s submissions dated 29 May 2025 repeat those filed on 30 April 2025, which sought referral for reassessment of the degree of permanent impairment.
Blacktown said that the request for reconsideration of the COD should be rejected because there is no explanation why Ms Bond made the choices she did in pursuing her claim and in discontinuing before a COD could be issued with respect to permanent impairment. If the reconsideration was allowed, Blacktown said that it should be for the purpose of confirming Ms Bond’s entitlement to compensation in respect of 50% WPI.
The submissions opposing reconsideration of the MAC recite the procedural history. They reveal that the letter dated 18 November 2024 made a claim for permanent impairment compensation for 65% WPI based on the report of Dr Coffey, including 18% WPI in respect of the right hip and 18% WPI in respect of the right knee. Both assessments were subject to a deduction of one tenth under s 66. Blacktown said that the letter did not say that it was an amendment of the claim made in 2022. By a letter dated 20 January 2025, a claim was made in respect of 71% WPI. Ms Warren said that there were errors in the way the assessments were combined and that the correct total was 68% WPI. An application for reconsideration of the Appeal Panel’s MAC was made on 2 May 2025, relying on s 329 of the 1998 Act.
Blacktown said that s 322A of the 1998 Act prevents reconsideration of the MAC. Section 322A provides:
“(1)    Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2)     The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate 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 (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3)     Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4)     This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
Blacktown said that s 322A(1) is not ambiguous and that s 322A(4) is the only exception to there being one assessment of the degree of permanent impairment. It said that Ms Bond’s avenues of appeal have been exhausted so that it is not appropriate to exercise the discretion in s 329. Ms Bond had exercised her one right of appeal of the medical assessment, referring to Sleiman v Gadalla Pty Ltd.[5]
[5] [2021] NSWCA 236 at [81].
Blacktown acknowledged the decision in Inner West Council v McQuade[6] but said that it can be distinguished. It noted that the decisions on which the appellant in those proceedings relied predated the insertion of s 322A into the 1998 Act and said that the Commission should be hesitant to follow authorities which do not consider those reforms. It said that the construction of and interaction between ss 322A and 329 of the 1998 Act were considered in Stines v The GEO Group Aust Pty Ltd[7] (Stines) where Coleman DCJ said that s329 did not permit “repeated or never ending referrals” once an assessment or any appeal had been completed.
[6] [2025] NSWPICPD 32.
[7] [2021] NSWDC 550.
In support of the argument that s 322A precludes the application of the reconsideration power in s 329, Blacktown referred to O’Callaghan v Energy World Corporation Ltd[8] (O’Callaghan), Singh v B & E Poultry Holding Pty Ltd[9] (Singh) and Hochbaum v RSM Building Services Pty Ltd.[10] It also noted the comments of Principal Member Harris in Meyers v Andrew Miedecke Motors Pty Ltd[11] and his two decisions in Pollard v Toll Holdings Pty Ltd.[12] Blacktown said that Ms Bond had exhausted her right of appeal and had no further rights of appeal with respect to the medical assessment.
[8] [2016] NSWWCCPD 1.
[9] [2018] NSWWCCPD 52.
[10] [2020] NSWCA 113 at [55].
[11] [2024] NSWPIC 357
[12] [2024] NSWPIC 530 and [2024] NSWPIC 630.
The reconsideration sought is of the assessment undertaken by Dr Anderson and the Appeal Panel. Referring to the judgment of McCallum JA in Skates v Hills Industries Ltd[13](Skates), O’Callaghan and Secretary, New South Wales Department of Education v Connolly[14] (Connolly), Blacktown said that any reconsideration is limited to the assessment that was referred to the Medical Assessor.
[13] [2021] NSWCA 142 at [82].
[14] [2023] NSWPICPD 38.
Turning to the merits of any reconsideration application, Blacktown said that the power is discretionary and that the public interest in the finality of litigation, highlighted in Procedural Direction PIC 7, meant that the Commission must be very cautious in considering an application of this nature. Ms Bond made a forensic decision, with legal advice, to make the s 66 claim and exercise her right of appeal. The ARD alleged that Ms Bond suffered injury to her bilateral hips and medical information in the file referred to longstanding difficulties with sleep. Blacktown said that Ms Bond should not be permitted to circumvent the legislative restrictions to change her mind. It said that the discretionary factors in Samuel v Sebel Furniture Ltd[15] (Samuel) weighed against the exercise of discretion under s 329 of the 1998 Act.
[15] [2006] NSWWCCPD 141.
Ms Bond did not file or seek to file submissions in reply.

Further submissions

Ms Bond

Mr Horan prepared submissions dated 19 August 2025 for Ms Bond in response to the direction dated 14 August 2025. Ms Bond thereby submitted that Pollard, Lovelee and Sleiman are distinguishable because in each of those cases, the appeal was an appeal from the MAC of a Medical Assessor under s 327 and this case is an application for reconsideration under s 329. The reconsideration application in Pollard was framed under s 329(1)(a) only.
Ms Bond said that the decision in Pollard confirms her forensic decision to discontinue the proceedings because she did not have a right of appeal under s 327.

Blacktown

Ms Warren prepared further submissions dated 28 August 2025. Blacktown said that Pollard can be distinguished. The MAC in that case was confirmed on appeal and the worker’s application under s 329(1)(a) was dismissed because the right of appeal had already been exercised. Snell DP held that the Member was wrong to dismiss the reconsideration application. Blacktown submitted that Lovelee can also be distinguished because Mr Lovelee sought a reconsideration of the MAC issued by the Medical Assessor and not an Appeal Panel.
Blacktown noted that Ms Bond conceded that she has no right of appeal in respect of the medical assessment and that consequently s 329(1)(a) does not apply. Section 329(1A) also precludes a reconsideration of the MAC issued by the Appeal Panel because it is not a certificate issued by a Medical Assessor. Blacktown said that the warning issued by the President in Connolly applied:
“If the Respondent is permitted to have the MAC reconsidered to include the assessment of additional body parts that did not form part of her claim nor the ‘medical dispute’ between the parties, it sets a precedent in which a worker, if dissatisfied with a MAC, could obtain a further medico legal report inclusive of additional body parts and then seek to have a further assessment. That course of action, if allowed, would avoid the application of s 66(1A) of the [1987] Act, which was specifically introduced to prevent situations such as those in the present matter.”[16]
[16] At [74].
Blacktown said that, in any event, I should not exercise the discretion to allow the reconsideration.

FINDINGS AND REASONS

The assessment of Ms Bond’s permanent impairment made by the Medical Assessor and the Appeal Panel exceeds of all thresholds in the 1987 Act so that her rights in respect of weekly compensation and s 60 expenses for the accepted injuries will not be effected by the outcome of this application. However, unless the COD is set aside, Ms Bond is not entitled to any permanent impairment compensation.
The purpose of the application is to seek additional permanent impairment compensation for three additional injuries. Blacktown has previously accepted liability for an injury to Ms Bond’s right knee in respect of which the Medical Assessor assessed 0% WPI. She did not appeal that finding when she brought the medical appeal. Blacktown accepted that Ms Bond suffered a consequential condition in her right hip and agreed to pay the s 60 expenses of and incidental to total hip replacement surgery.
Mr Horan said in his submissions that the application for reconsideration of the MAC sought further medical assessment with respect to Ms Bond’s right knee, right hip and sleep apnoea. The submissions do not deal with the fact that no claim has been made with respect to sleep apnoea and that Blacktown has not had the opportunity to have Ms Bond relevantly assessed, nor has any permanent impairment claim has been made in respect of her right hip since the surgery.

Reconsideration generally

Section 57 of the 2020 Act is the same terms as the former s 350(3) of the 1998 Act. The considerations relevant to the exercise of the former provision apply to the current provision. Section 57 provides:
“(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.”
In Samuel, Roche DP described the factors relevant to the exercise of the power to reconsider under s 350(3) and said (omitting citations):
“1.     the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2.     whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3.     whilst the discretion is a wide one it 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 (‘Schipp’);
4.     one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);
5.     reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6.     given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7.     depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8.     a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9.     the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
In Maksoudian v J Robins & Sons Pty Ltd,[17] Bishop CCJ said:
“... There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court's attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v. Hilliger (1952) 52 SR (NSW) 105.”
[17] [1993] NSWCC 36; 9 NSWCCR 642.

The passage from the decision of Street CJ in Hilliger v Hilliger[18] (Hilliger) to which Roche DP referred in Samuel reads:
“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.”
[18] (1952) 52 SR (NSW) 105, 108.
The emphasis in the latter quote was added by Roche DP and he formulated the last of the factors in his list by reference to that passage and to the former s 354(3) of the 1998 Act, now s 43(3) of the 2020 Act, which provides:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

Reconsideration of the COD

Because there can only be a single assessment of WPI,[19] the COD must be set aside before any reconsideration of the MAC.
[19] Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113 at [54]-[57].
Taking into account the broad discretion to reconsider a determination of the Commission, fairness dictates that the COD should be set aside. Even though I have determined, for the reasons set out below, that the MAC should not be reconsidered, it would be unjust and contrary to the guiding principle in s 42 of the 2020 Act not to permit Ms Bond to recover the compensation payable in respect of the injuries which have been accepted and assessed by the Medical Assessor and the Appeal Panel. Section 42 of the 2020 Act provides that the guiding principle of that Act is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
Blacktown conceded that an order setting aside the COD may be appropriate.

Reconsideration of the MAC

While any reconsideration would be undertaken by a Medical Assessor, the question of whether or not that should occur is one for the Commission.
The grounds relied on by Ms Bond in support of the application for reconsideration are consistent with the grounds of appeal in s 327(3)(a) and (b) of the 1998 Act – deterioration of her condition and the availability of additional relevant information. The same arguments are relied on with respect to her right knee and with respect to her right hip and sleep apnoea. The circumstances with respect to Ms Bond’s right knee are different to those with respect to her right hip and sleep apnoea.
Section 327 of the 1998 Act provides:
“327   Appeal against medical assessment
(1)     A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2)     A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3)     The grounds for appeal under this section are any of the following grounds—
(a)deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b)availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c)the assessment was made on the basis of incorrect criteria,
(d)the medical assessment certificate contains a demonstrable error.
(4) …
(5)     If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.
(6)     The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
…
(7) 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.
…”
Sections 327(2) and (7) preclude a medical appeal for the reasons set out below.
Section 329 of the 1998 Act permits referral for a further medical assessment or reconsideration by the President as an alternative to an appeal or by a court or the Commission. Section 329 provides:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a)the President as an alternative to an appeal against the assessment as provided by section 327, or
(b)a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
Ms Bond identified in her most recent submissions that she relies on s 329(1)(b), s 329(1)(a) no longer being available because there has been a medical appeal.
Blacktown submitted that Wood DP’s decision in McQuade applies in different circumstances to those I am considering. I agree that is so but general principles collected in the decision are relevant to consideration of s 329. The parties in McQuade agreed that separate injuries should be referred for medical assessment but a Medical Assessor assessed all of the injuries globally with one deemed date. An Appeal Panel found that the first Medical Assessor’s approach was wrong but issued a new MAC, again making one assessment of 26% WPI. At a preliminary conference, a Member of the Commission determined that he did not have the power to refer the matter for reconsideration by a Medical Assessor and issued a COD reflecting compensation for 26% WPI. Wood DP set out principles applicable to s 329 gleaned from authorities:
“(a)    the Commission has jurisdiction to make an order referring a matter for further assessment pursuant to 329(1)(b), notwithstanding that an Appeal Panel decision has been made (Adriaansen[20]);
(b)     where a party has failed in an appeal to the Appeal Panel, the party’s remedy is not restricted to the commencement of Supreme Court proceedings (Adriaansen);
(c)     section 329 is in broad unlimited terms not needing preconditions to be satisfied and is not restricted to the circumstances described in s 327(6) (Mansour[21], Milosavljevic[22]);
(d)     section 329(1)(b) allows the Commission to correct the failure to afford a party procedural fairness by an Appeal Panel and s 329 can be used where no grounds of appeal are made out, but the dictates of justice require a further referral (Mansour, Milosavljevic, Adriaansen);
(e)     such an approach is consistent with the objectives of the legislation to provide a fair dispute resolution system and for the Commission ‘to act according to equity, good conscience and the substantial merits of the case’ in accordance with s 43(3) of the 2020 Act (Mansour);
(f)     a referral for further assessment does not have to be conducted by the same Medical Assessor who performed the earlier assessment (Mansour);
(g)     while s 329(1)(b) is in broad unlimited terms, the section must be read in the context of the legislation (Milosavljevic, Adriaansen), and
(h)     the scope of s 329 must be determined on a case by case basis and will always be the subject of the Commission’s jurisdictional limits (Milosavljevic, Adriaansen).”
[20] Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36.
[21] Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286.
[22] Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56.
Wood DP held that the Member erred in determining that the matter could not be referred for reconsideration once an Appeal Panel had made a decision and in failing to exercise the discretion in s 329. The matter was remitted for re-determination by another non-presidential Member of the Commission.
Wood DP said that the power may be exercised where the dictates of justice require a reconsideration, even if an appeal was not possible. The circumstances in McQuade were different to this case because in McQuade neither the Medical Assessor nor the Appeal Panel had assessed the claim in the way contemplated by the parties’ consent orders. Reconsideration was an appropriate method to resolve that error. It is an example of circumstances in which the interests of justice dictate that reconsideration should be undertaken.
Ms Bond agrees that she does not have the right to bring a further medical appeal but the grounds relied on in support of the reconsideration application are consistent with the words of s 327(3)(a) and (b) – that there has been a deterioration in her condition and that it is based on additional relevant information not available when the MAC was issued. They are the grounds that would be relied on if a medical appeal was available. Though the discretion under s 329 is broad, it is appropriate to consider the interpretation of deterioration and additional relevant information consistently with the interpretation of s 327(3)(a) and (b).
One of the explanations relied on by Ms Bond for delay in bringing the application for reconsideration was that Payne JA’s decision in Lovelee required that further advice be sought from counsel. The decision in Lovelee is an application of the decision in Sleiman.
In Sleiman the decision of a Medical Assessor was set aside by an Appeal Panel and a COD was issued certifying the degree of permanent impairment. Mr Sleiman sought to bring an appeal in respect of a deterioration and the availability of additional information. The Court of Appeal held that Mr Sleiman was not able to bring a further medical appeal but, under transitional provisions then in force, could seek a reconsideration of the MAC.
Leeming JA set out the history of Mr Sleiman’s proceedings, noting that as a result of the Appeal Panel decision, a COD was issued stating that Mr Sleiman had 14% WPI. His Honour said:[23]
“Thus, following his successful appeal to the Appeal Panel in 2017, Mr Sleiman and his employer and its insurer and the Commission and any court became bound by (a) a medical assessment certificate dated 16 June 2017 assessing his whole person impairment at 14% and (b) a certificate of determination from the Commission requiring his employer to pay him a lump sum under s 66 of the Workers Compensation Act. The Commission’s certificate determined as between the parties Mr Sleiman’s entitlement to compensation pursuant to s 66. The new medical assessment certificate issued by the Appeal Panel determined, conclusively, Mr Sleiman’s degree of permanent impairment of 14% in any proceedings before a court or the Commission.”
[23] At [10].
In Lovelee, Payne JA said:[24]
“It appears that the Appeal Panel proceeded on the basis that the decision in Sleiman was determinative of the present case. I do not agree.
In Sleiman the clear words of s 327(2) and (7) applied to preclude a second appeal. Those subsections do not preclude the present appeal.
As to s 327(2), the principal difference between this matter and Sleiman is that in Sleiman the first Appeal Panel revoked the MAC issued by an approved medical specialist and issued a new certificate: Sleiman at [17]; [30]; [57]–[58]; [60]; [70]–[76]. Mr Sleiman subsequently sought to appeal against the Medical Assessment Certificate issued by the Appeal Panel. In the present case, the appeal was framed as an appeal from a medical assessment certificate of a medical assessor: s 327(2). (emphasis in original)
Sleiman is authority for two propositions:
1.that s 327(2) does not permit an appeal from a medical assessment certificate issued by an Appeal Panel under s 328(5) because it is not a certificate issued by a medical assessor; and
2.that s 327(7) does not permit an appeal after the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under s 66A of the Workers Compensation Act1987 (NSW).”
[24] At [36]-[39].
Mr Lovelee was assessed in respect of his lumbar spine and both lower extremities. He appealed the MAC but it was confirmed by an Appeal Panel. He discontinued the proceedings before a COD was issued. After further surgery to his lumbar spine, he recommenced the appeal, relying on the grounds of deterioration and additional relevant information. He framed his appeal as an appeal from the assessment of the original Medical Assessor. The President’s delegate referred the appeal to another Appeal Panel which held that it did not have jurisdiction to consider the medical appeal because of the decision in Sleiman.
Payne JA found that s 327(2) and (7) did not preclude a further appeal because the original MAC had not been revoked by the Appeal Panel and because Mr Lovelee had discontinued proceedings before a COD was issued.
His Honour said:[25]
“It is no doubt correct that there is a need to guard against a course of action which has the deliberate effect of circumventing a ‘prescribed process’. I agree that that it is undesirable to permit ‘multiple attempted claims through the method of discontinuance in the event of dissatisfaction’ with assessments or appeals.”
[25] At [58].
While Payne JA left open questions as to how the appeal in Lovelee may proceed, the decision does not alter Ms Bond’s rights. It would always have been necessary to apply to set the COD aside before any further appeal or reconsideration could occur, as happened in Sleiman.[26] Any delay occasioned by consideration of the decision in Lovelee, while not substantial is not relevant to the exercise of my discretion.
[26] Sleiman v AGR Tyres Pty Ltd [2022] NSWPIC 496 (reconsideration), Sleiman v AGR Tyres Pty Ltd [2023] NSWPICMP 111 (Appeal Panel).
Pollard was an application under s 329(1) of the 1998 Act. The Medical Appeal Panel did not issue a new MAC. Snell DP allowed the appeal on the basis of an additional ground raised after submissions were sought in respect of Lovelee. Snell DP said:
“In the current matter, as in Lovelee, there was no relevant determination of the dispute, or registration of an agreement, that would trigger the operation of s 327(7). The decision of the Medical Appeal Panel did not constitute a determination by the Commission: Lovelee at [43], [47] to [48]. In the current matter, as in Lovelee, the appeal brought is against an ‘assessment of a medical assessor certified in a medical assessment certificate under this Part [which] is conclusively presumed to be correct in proceedings before a court or the Commission.’ Section 327(2) does not preclude appeal in the current matter, as it did not preclude the appeal at issue in Lovelee: Lovelee at [43].”
The parties agree that this matter is different to the situation in Lovelee and Pollard.
Ms Bond seeks reconsideration to permit respect to three potential assessments. The matters to be taken into account with respect to each are different. No claim for compensation has been made for sleep apnoea. Though a claim for s 60 expenses for the right hip was accepted, it has not been the subject of a permanent impairment claim. The right knee has previously been assessed at 0% WPI. Only the last can properly be the subject of an application for reconsideration.

Sleep apnoea

Ms Bond underwent a sleep study ordered by her cardiologist on 5 November 2024. Based on that study, Ms Bond’s solicitors obtained reports from Drs Dimitri and Howison dated 16 December 2024 in support of the claim. Though Ms Bond referred to Dr Dimitri as a treating doctor, his report does not convey that is so.
From the information provided to me, it appears that the first claim that Ms Bond suffered sleep apnoea as a consequence of the injury was made by the filing of the application for reconsideration. I accept that the reports that support the claim were only obtained at the end of 2024, but there is no evidence before me that Ms Bond has made claim on Blacktown, with the result that Blacktown has not had the opportunity to consider or determine it. There is therefore no medical dispute, as defined in s 319 of the 1998, Act which could be referred to a Medical Assessor - Skates v Hills Industries Ltd.[27]
[27] [2021] NSWCA 142.
The claim is based on the allegation that the development of sleep apnoea as a result of weight gain and chronic pain is part of a deterioration of Ms Bond’s overall condition. The submissions filed for Ms Bond do not take account of the authorities with respect to the meaning of deterioration.
The deterioration ground in s 327(3)(a) was considered by the Court of Appeal in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission[28] (Riverina Wines) Campbell JA (with whom Hodgson JA and Handley AJA agreed) said, when construing s 327(3)(a):
“‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
[28] [2007] NSWCA 149.
In O’Callaghan, the worker sought to argue that s 327(a) permitted an appeal if there was a deterioration in her overall medical condition rather than in the body parts previously assessed. She had not previously claimed compensation for the cervical spine injury. Roche DP held, relying on Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW),[29] that the AMS was permitted only to assess the body parts referred to him and:
“s 327 does not contemplate a situation where a worker can continue to bring claims, under the guise of an appeal, for a deterioration in respect of parts of the body that were not previously the subject of a dispute or an assessment by an AMS.”
[29] [2006] NSWSC 322 at [21]-[22].
Referring to Riverina Wines, Roche DP said that the argument that a relevant deterioration was a deterioration in the worker’s overall medical condition was contrary to that binding authority. He said:
“The ‘condition in question’ in the present case is Ms O’Callaghan’s lumbar spine and sacro coccygeal spine, not her cervical spine. ‘Deterioration’, being ‘an inherently relational concept’, operates on or with respect to the deterioration of the degree of impairment of ‘a matter’ as to which the assessment of an AMS, certified in the MAC, is conclusively presumed to be correct (s 327(2)). As Dr Ho did not assess Ms O’Callaghan’s cervical spine, he provided no assessment of any ‘matter’ with respect to it that is conclusively presumed to be correct and no question of a deterioration in that condition arises in s 327(3)(a). As it was not assessed, it is not ‘a matter’ that is appealable under s 327(1)).”

For that reason, the claim with respect to sleep apnoea cannot be referred to a Medical Assessor and I decline the application for reconsideration to permit the claim to be made.
There is also material which casts doubt on the assumptions made by Dr Dimitri in support of his assessment. The references to Ms Bond’s issues with sleep in the medical reports before 2024 are limited and are linked to depression and chronic pain. Dr Dimitri diagnosed insomnia due to chronic pain as well as an exacerbation of pre-existing sleep apnoea due to immobility, resulting in weight gain. He was provided with a history that Ms Bond weighed 95 kg at the time of the injury. That history is repeated in the reports of a number of doctors but is not supported by clinical records which show that Ms Bond’s weight was recorded at 110 kg only four months before the injury. It is unlikely that Dr Dimitri’s report is based on accurate assumptions.

Right hip

In her first statement, Ms Bond described pain in both hips. The ARD claimed in respect of both knees. Ms Bond said in her most recent statement that she would not have applied for the MAC in 2022 if she had known her right knee and hip would deteriorate. Though there are reference to complaints in respect of both hips and a reference in the description of injury in the ARD, Ms Bond has never previously made a claim for permanent impairment resulting from her right hip.
Blacktown accepted responsibility for s 60 expenses of and incidental to right hip surgery by consent orders entered into on 12 March 2024.
The permanent impairment claim dated 31 May 2022 was based on Dr Gehr’s report dated 2 June 2021. The claim was for 67% WPI as assessed by Dr Gehr and the letter did not set out the components of the claim. He said that there was no rateable impairment of the right knee and did not record an assessment in respect of Ms Bond’s right hip. The claim in the ARD was based on Dr Gehr’s assessment.
Leeming JA said in Skates:[30]
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.
Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.
The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”
[30] At [46]-[48].
The Medical Assessor assessed Ms Bond in respect of her right knee only. Applying Skates, that was the only dispute before him in respect of the right lower extremity.
I accept that an assessment in respect of Ms Bond’s right hip could not have been undertaken before total hip replacement surgery but in the absence of a previous permanent impairment claim in respect of the right hip, there cannot be a deterioration and the claim could not be referred to a Medical Assessor. I decline to grant the application for reconsideration in respect of Ms Bond’s right hip.

Right knee

The only claim which can properly be the subject of the reconsideration application is that in respect of Ms Bond’s right knee. While there has been a deterioration on Ms Bond’s evidence, I am not satisfied that it is appropriate to grant the application for reconsideration for the reasons which follow.
Ms Bond has claimed since the date of the injury that she suffered an injury to her right knee. The medical evidence shows that there were indications that her condition may progress before the date of the MAC. She described symptoms of giving way and locking. The permanent impairment claim was made relatively soon after the left hip replacement, at a time when Dr Courtenay said that Ms Bond’s condition had not reached maximum medical improvement.
The Medical Assessor observed that Ms Bond’s right knee seemed to lock on occasions. He diagnosed injury to Ms Bond’s right knee which he assessed at 0% WPI.
Samuel requires a consideration of any reasons for delay in bringing a reconsideration application. On one view, it could be said that any delay is minimal and is a neutral consideration. The last of the material on which Ms Bond relies came into existence in late 2024 and the application was brought within six months.
On the other hand, the proceedings were discontinued soon after the Medical Appeal, before a Certificate of Determination could be issued. Ms Bond said that she feared a deterioration in her condition overall and it appears that treatment was proposed to her left shoulder. There is very little attempt to explain what has happened since 2023 other than what can be gleaned from the medical reports.
Dr Coffey was Ms Bond’s treating surgeon as well as being the doctor who most recently assessed WPI. In his report to her general practitioner dated 21 March 2024, Dr Coffey noted longstanding issues in respect of both hips. He considered that there may be some role for right knee replacement but only after right hip replacement. In his report dated 13 November 2024, he said that ongoing difficulties with Ms Bond’s right knee were not sufficient to consider knee replacement.
Dr Coffey’s latter report highlights the difficulties in Ms Bond’s case. The report is very brief. It is little more than assess permanent impairment, providing almost no reasoning in support of the opinions expressed. Dr Coffey referred to recent radiology which showed a significant loss of cartilage in her right knee but said nothing about the range of motion assessments which had been made by other assessors. While the report shows that Dr Coffey was not then considering knee replacement, it does not say that he has considered whether it is possible in the future. It highlights the extent to which the preparation of Ms Bond’s claim has been made on a piecemeal basis. It suggests that the timing of the application for medical assessment may have been premature.
The grounds on which Ms Bond relies are those on which she would have relied if an appeal under s 327(3) was possible. It is relevant to observe that Ms Bond is prevented from bringing a medical appeal under s 327(3)(a) and (b) because of the forensic decision to appeal the MAC. If she had not appealed, and if the criteria in s 327(3)(a) and (b) were satisfied, she may have been able to appeal the MAC in respect of her right knee.
As noted above, the medical appeal was on narrow grounds, being the allowance for the impact of the lumbar spine injury on the activities of daily living and the deduction of one-tenth under s 323 of the 1998 Act. Though the Appeal Panel allowed the maximum of 3% for the impact on the activities of daily living, there was no impact on the permanent impairment assessed because of rounding. The Appeal Panel did not accept that that the Medical Assessor erred in making a deduction under s 323.
The decision to appeal the MAC was likely to have been made on legal advice. The greatest impact the appeal could have had was compensation for an additional 3% WPI for Ms Bond’s lumbar spine. When combined with the remainder of the assessments in accordance with the Combined Values Table in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed, it is unlikely to have resulted in an additional 3% overall. Any advice to bring the appeal at that time, rather than preserving the potential appeal rights in s 327(3)(a) and (b) may constitute a mistake by a legal adviser as described in Samuel. It is a factor weighing against reconsideration.
The submissions filed for Ms Bond are silent as to what is sought to be achieved by the application for reconsideration. While further monetary compensation may be substantial the assessment of WPI made by the Medical Assessor exceeds all relevant thresholds to recover compensation in the 1987 Act for ongoing weekly compensation and s 60 expenses.
The application is contrary to the principles in s 66(1A) of the 1987 Act - that only one claim for permanent impairment compensation can be made and s 322A of the 1998 Act - that there be only one medical assessment. Ms Bond’s submissions did not grapple with those sections. They preclude the application that is now made. As Coleman DCJ said in Stines,[31] in the context of claim by a prisoner to which the assessment provisions of the 1998 Act apply:
“…in my opinion, a proper construction of these provisions means that there can only be one assessment made as to the degree of permanent impairment of the plaintiff, which assessment may be the subject of an appeal. Once that has occurred, as it has in this case, then no further assessments of the degree of permanent impairment of the plaintiff can be sought or made.
Insofar as s 329(1) provides that, for a matter for assessment being referred again on one or more occasions, it clearly states that this can only occur ‘in accordance with this Part’. As I have said above, s 322A prescribes that there can only be one medical assessment for the degree of permanent impairment. I do not accept that s 329 means that there can be repeated and never ending referrals of matters dealing with the degree of permanent impairment of an offender in custody once that assessment, and any appeal from that assessment, have been completed.
…
… on a proper construction of s 322A, I conclude that only one medical assessment for a degree of permanent impairment (and an appeal from that assessment) can be made. I do not accept that the legislation provides a person such as this plaintiff unlimited opportunities to seek further assessments if they are not satisfied with the assessment made. As was done here, the party assessed can appeal the assessment and seek judicial review of the appeal. There must be some finality in the process. In my opinion, that finality is achieved by the construction of s 322A which I prefer.”
[31] At [97]-[98] and [102].
Blacktown’s submission that there is no certainty that this application will bring these proceedings to a conclusion is apt.
Though proceedings are factually different from Singh, the principles discussed are relevant. In Singh, the worker discontinued proceedings after a MAC was issued then obtained a higher assessment of WPI and commenced new proceedings. Snell DP said:[32]
“…Failure by the appellant to utilise potential appeal rights pursuant to s 327 of the 1998 Act, that were unfettered by s 322A, would be relevant to exercise of the discretionary power. However, there is a more fundamental reason why the discretion should not be exercised in the circumstances.
The course adopted by the appellant, if it were properly available, potentially has the effect of avoiding the application of s 322A of the 1998 Act. A worker could make a claim, undergo medical assessment by an AMS, obtain a MAC, and if he or she was dissatisfied with the assessed level of permanent impairment, simply discontinue the proceedings before a Certificate of Determination was issued consistent with the binding MAC. If the worker subsequently obtained a higher medicolegal assessment, the worker could simply ‘amend’ the claim, and repeat the process, potentially on more than one occasion.”
[32] At [54]-[55].
Phillips P approved those remarks in Connolly. A Medical Assessor declined to assess one of the body parts referred to him on the basis that he did not consider that the worker had suffered a relevant injury to that part but considered that she was suffering from another condition. He also said that he would have made an assessment for scarring, which had not been part of the referral. On an application for reconsideration of the MAC, a Member of the Commission ordered that the matter be referred back to the Medical Assessor to assess the matters originally referred to him as well as those conditions that the Medical Assessor identified. Phillips P held that the Member’s order was contrary to Skates and that Commission’s jurisdiction in a lump sum compensation claim was not at large. The passage quoted in Blacktown’s submissions is a quote from the respondent’s submissions in that case, though Phillips P said it had some force,
“…If the Respondent is permitted to have the MAC reconsidered to include the assessment of additional body parts that did not form part of her claim nor the ‘medical dispute’ between the parties, it sets a precedent in which a worker, if dissatisfied with a MAC, could obtain a further medico legal report inclusive of additional body parts and then seek to have a further assessment. That course of action, if allowed, would avoid the application of s 66(1A) of the [1987] Act, which was specifically introduced to prevent situations such as those in the present matter.”
Even though Ms Bond previously made a claim in respect of her right knee, the principle remains relevant. Dr Coffey said that there may be some role for a knee replacement. There is no evidence suggesting that possibility has been ruled out.
The potential prejudice suffered by Ms Bond if the reconsideration is not granted is that she will not have the opportunity to recover additional permanent impairment compensation. Because the impairment already assessed is in excess of all relevant thresholds, her right to ongoing weekly compensation and s 60 expenses is not impacted.
The prejudice which Blacktown may suffer is dealing with ongoing disputes and the possibility of further appeals.
Weighing all of those factors, I determine that it is not in the interests of justice to allow reconsideration of the MAC to permit a further assessment of Ms Bond’s right knee.
It would be against the dictates of justice to decline to reconsider the COD.

Orders

The application to reconsider the COD dated 17 July 2023 is granted.
I set aside the COD dated 17 July 2023.
The application to reconsider the MAC is declined.
Pursuant to s 66 of the 1987 Act the respondent is to pay the applicant $179,025 in respect of 50% whole person impairment, including 5% uplift with respect to the back.
I grant liberty to apply in the event that the calculation in order 4 is incorrect.

[2025] NSWPIC 453

3 September 2025