Bunfield v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bunfield v State of New South Wales (NSW Police Force) [2023] NSWPIC 492
APPLICANT:	James Bunfield
RESPONDENT:	State of New South Wales (NSW Police Force)
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	20 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; applicant sought reconsideration of Certificate of Determination (COD) and referral to the President for referral to a Medical Assessor pursuant to section 329, for assessment of whether he is a worker with “high needs”; applicant has undergone spinal surgery since issue of previous Medical Assessment Certificate (MAC); applicant now has higher assessment of whole person impairment than assessed in the previous MAC; respondent did not consent to the rescission of the COD or referral to the President; consideration of sections 327, 329, and 322A; and section 57 of the Personal Injury Commission Act 2020; consideration of Sleiman v Gadalla Pty Ltd, BEX v Koskela Pty Limited, Lazio Formwork Pty Ltd v Kelly and Kelly v Lazio Formwork Pty Ltd, Samuel v Sebel Furniture Limited, Railcorp NSW v Registrar of the WCC of NSW, and Galea v Ralph Symonds Pty Ltd; Held – COD revoked; matter remitted to the President to determine whether it can be referred for a further assessment of permanent impairment as provided for by section 329 (1).
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination dated 12 April 2021 is rescinded pursuant to s 57(1) of the Personal Injury Commission Act 2020. 2. The matter is remitted to the President for a determination as to whether it may be referred for a further assessment of permanent impairment, as an alternative to an appeal, pursuant to s 329 (1) of the Workplace Injury Management and Workers Compensation Act 1998.

STATEMENT OF REASONS

BACKGROUND

The applicant, James Bunfield (Mr Bunfield), is employed by the respondent, State of New South Wales (NSW Police Force) (NSWPF) as a radio operations communications officer.
Mr Bunfield was previously employed by the respondent as a police officer. He was medically discharged in about February 2001 and later commenced “general duties”, as a civilian employee.
On 1 December 2016, the applicant underwent left sided L4/5 and L5/S1 decompression laminectomy and neurolysis procedure, performed by orthopaedic surgeon Dr Charles New. He recovered and returned to his pre-injury duties in late January 2017.
Mr Bunfield sustained an injury to his lumbar spine on 25 May 2017, when he pushed open a secure door. As a result of that injury, he also sustained a consequential condition of his right hip.
The applicant underwent right hip replacement surgery, performed by Dr Sol Qurashi, on
2 July 2018. He made a gradual return to his pre-injury employment.
The applicant made a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), as a result of injury to his lumbar spine and right lower extremity (hip).
The medical dispute was referred to Approved Medical Specialist (AMS)
Dr Tommasino Mastroianni, who examined Mr Bunfield on 15 October 2020.
On 20 October 2020, Dr Mastroianni issued a Medical Assessment Certificate (MAC), in which he assessed the applicant’s whole person impairment (WPI) as 19% as a result of injury to the lumbar spine and right lower extremity.
Mr Bunfield lodged an appeal against the MAC and the appeal was considered by a Medical Appeal Panel (MAP).
On 2 March 2021, the MAP confirmed the MAC issued on 20 October 2020.
On 12 April 2021, the Personal Injury Commission (Commission) issued a Certificate of Determination (the first COD), in which it ordered the respondent to pay to the applicant the sum of $47,345.95 in respect of 19% permanent impairment resulting from injury on
25 May 2017.
On 10 September 2021, the applicant underwent a revision laminotomy and neurolysis at L4/5 and L5/S1, again performed by Dr New.
By letter to iCare Workers Insurance (iCare) dated 27 July 2022, the applicant’s solicitors served a report from Dr New dated 19 July 2022, in which he assessed Mr Bunfield with over 21% WPI as a result of injury to his lumbar spine, right hip and TEMSKI.
The applicant’s solicitors requested that iCare acknowledge that he exceeded the 21% WPI to be classified as a “high needs worker”.
On 17 March 2023, Employers Mutual Limited (EML) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant had reached the required threshold to be considered a worker with high needs. It relied on evidence from Dr Todd Gothelf, orthopaedic specialist, who had assessed Mr Bunfield with 20% WPI.
The applicant lodged an Application for Assessment by a Medical Assessor (the Application) on 21 April 2023. He sought an assessment as to whether the degree of permanent impairment was more than 20% (s 39 of the 1987 Act) as a result of injury to the lumbar spine, right lower extremity, and TEMSKI.
The applicant claimed that on 25 May 2017, he was pushing open a secure door when he experienced a popping sensation and injury to his lumbar spine. He suffered consequential injury to his right hip as a result of altered gait following the lumbar spine injury.
The respondent lodged its Response to Application for Medical Assessment (Response) on 10 May 2023.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) whether the applicant may be referred for further assessment pursuant to s 329 (1) of the 1998 Act;
(b) whether s 322A of the 1998 Act applies to the Application, and
(c) whether the Commission’s decision should be reconsidered and the first COD rescinded.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 25 May 2023. Mr Perry of counsel, instructed by Ms Grant-Nilon, appeared for the applicant; and Ms Psirakis appeared for the respondent. The applicant attended.
Mr Perry confirmed that the applicant was seeking another assessment, by a Medical Assessor. He was not seeking further compensation.
The possible application of ss 322A, 327 and 329 of the 1998 Act, including whether the applicant would require the first COD to be set aside, was discussed.
I note that the notice issued by EML did not raise issues of whether the applicant was entitled to be further assessed by a Medical Assessor. However, these issues were ventilated at the preliminary conference, and both parties have addressed them. In any event, as the respondent submitted, there could be no consideration of the application of s 329 of the 1998 Act until proceedings had been commenced.
To the extent that it is necessary, I grant the respondent leave pursuant to s 289A(4) of the 1998 Act to raise the issues of the application of ss 322A, 327 and 329 of the 1998 Act.
The respondent advised that it wished to consider its position. It was agreed that a timetable for written submissions would be set. In the meantime, the respondent could consider whether it was prepared to consent to a referral to a Medical Assessor.
The timetable was altered slightly to allow each party an additional week to provide his or its submissions. The parties were advised that, at the conclusion of the time allowed for submissions, the matter would be determined ‘on the papers’.
On 25 July 2023, I caused to be sent to the parties an email drawing their attention to the decisions of Deputy President Snell in the matters of Lazio Formwork Pty Ltd v Kelly and Kelly v Lazio Formwork Pty Ltd[1].
[1] [2023] NSWPICPD 40 (Lazio).
The parties were asked to advise the Commission by close of business on 1 August 2023 whether they wished to lodge further submissions, and, if so, an agreed timetable.
The parties agreed on a further timetable, and each has lodged further submissions in accordance with that timetable.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents, and
(b) Response and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of applicant, James Bunfield

The applicant’s first statement is dated 3 July 2020.
He commenced work with the NSWPF when he was in his mid-twenties. In 1995, he suffered injury to his left knee. He underwent two surgeries, but his condition deteriorated, and he was discharged from NSWPF in about February 2001.
He suffered a consequential injury to his right knee and underwent arthroscopy in 2001.
He had surgery to his right shoulder in 2014. He has also had two successful surgical ablations, for atrial fibrillation, in 2012.
Following his medical discharge, he commenced “general duties”, working in the radio room.
In about 2016, he began to experience increased pain in his lumbar spine. Scans revealed pathology. He was referred to Dr Charles New. He underwent left-sided L4/5 and L5/S1 decompression laminectomy and neurolysis on 1 December 2016.
On 25 May 2017, he was pushing open a secure door, which became stuck, causing a popping sensation in his back. He experienced immediate significant pain in his lumbar spine.
He was again referred to Dr New, and for physiotherapy. Dr New noted that the pathology was now in his right lumbar spine. He recommended physiotherapy and Pilates.
He was experiencing debilitating pain in his lower back. This increased when he walked. He needed to walk with a limp to minimise the pain.
Over time, he experienced increasing pain in his right hip. He saw Dr New, who recommended MRI, which revealed new pathology. Dr New referred him to orthopaedic surgeon, Dr Simon Coffey.
Dr (Anthony) Park, general practitioner (GP), referred him to Dr Sherif Rizkallah, orthopaedic surgeon, who recommended total right hip replacement. Dr Coffey and Dr Sol Qurashi, orthopaedic surgeon, also recommended the surgery.
The surgery was performed on 2 July 2018. He was discharged on 4 July 2018, and underwent physiotherapy. He continued to experience some symptoms in his right hip.
He continued to experience chronic pain in his lumbar spine. It increased with movement. He also experienced numbness down both legs, more so down the right. He also experienced cramping in both feet, two to three times daily.
The applicant’s second statement is dated 28 August 2020.
He had developed pain and symptoms in his left hip, following the injury to his lumbar spine on 25 May 2017.
In around December 2017, he really began to feel the effects of pain in his left hip. He underwent MRI scan on 7 May 2018.
He was referred to Dr Qurashi. As his right hip degenerated more quickly, Dr Qurashi recommended right hip replacement surgery.
After the surgery, he was discharged on crutches and continued to favour his left side to minimise pain on his right.
He continued to experience pain throughout his left hip. His lower back was even worse. The pain in his back was muscular. At times he experienced debilitating spasms. He continued to undergo physiotherapy, primarily for his lower back.
The applicant’s final statement is dated 17 April 2023.
On 11 May 2021, he was in the meal room at work. As he went to open the fridge, he did not realise, but it must have been recently closed. There was more resistance than anticipated.
As he pulled the door, his upper body twisted, and at the same time, his lower body twisted in the opposite direction, slipping on what appeared to be water on the floor. He heard a pop and felt immediate pain in his lower back at around the same area as his previous surgery site.
He attempted to continue working, but after around two to three hours he needed to leave. On his way home, he saw Dr David Chow, GP.
On 12 May [2021] he saw his usual GP, Dr Park, as his back was just as sore. He saw
Dr Park again on 14 May, as he had noticed a lump over the surgical scar, as well as ongoing pain in that area. Dr Park referred him back to Dr New, and for an updated MRI.
He continued to be certified unfit to work. He saw Dr Park on 19 May for ongoing similar symptoms. He was referred for, and continued to receive, physiotherapy and hydrotherapy.
On 17 June 2021, Dr New recommended that he undergo a nerve conduction study and another lumbar spine cortisone injection.
He was certified fit to return to working eight hours a day, three days a week. The pain slowly increased throughout his shift, particularly after five hours.
He underwent nerve conduction studies on 9 July 2021.
On 15 July 2021, he underwent nerve block. This was very painful and caused a stinging sensation through his right leg. His left leg became number for around an hour and a half.
He returned to work and self-managed his restrictions so as not to cause too much of an increase in his symptoms.
On 10 September 2021, he underwent a revision laminotomy and neurolysis at L4/5 and L5/S1. Following the surgery, he continued conservative treatment, including physiotherapy, physical therapy, hydrotherapy, and Pilates. He continued to be prescribed analgesics.
On 2 June 2022, he underwent another X-ray and CT of his pelvis and hips.

Medical evidence

It is unnecessary that I discuss most of the medical evidence.

Dr Tommasino Mastroianni – approved medical specialist

In a MAC issued on 20 October 2020, Dr Mastroianni assessed impairment as a result of injury to the applicant’s lumbar spine and right lower extremity (hip) on 25 May 2017.
Dr Mastroianni assessed the applicant’s WPI as 19%, having deducted 1/10^th from assessment of both the lumbar spine and right lower extremity, pursuant to s 323 of the
1998 Act.

Medical Appeal Panel Statement of Reasons

The MAP issued its decision on 2 March 2021.
The applicant relied on two grounds of appeal, that is, that the assessment of the AMS was made on the basis of incorrect criteria; and that the MAC contained a demonstrable error.
The MAP confirmed the MAC issued on 20 October 2020.

Dr Charles New – orthopaedic and spinal surgeon

Dr New performed revision L4/5 and L5/S1 decompression laminotomy and neurolysis on
10 September 2021.
On 19 July 2022, Dr New reported to the applicant’s solicitors that the applicant had undergone further surgery on 14 September 2021 [sic]. He had had over 90% improvement of his radicular pain, but over the last two months it had started to return in the S1 nerve root distribution.
Dr New assessed the applicant with 50% WPI. This included an assessment of impairment as a result of injury to the applicant’s left hip, in respect of which liability has been disputed.

Dr Todd Gothelf – orthopaedic surgeon

Dr Gotthelf was qualified by the respondent and reported on 5 January 2023.
Dr Gothelf assessed the applicant with 15% WPI. However, he did not include impairment of the lumbar spine due to either the first or second surgical procedures, as he considered they were not work related. He also did not assess impairment of the applicant’s left hip.
After having been advised that the respondent had accepted liability for the surgery,
Dr Gotthelf assessed the applicant’s WPI as 20%.

SUBMISSIONS

The parties have provided written submissions, which I will briefly summarise.

Applicant

The applicant submitted that his application was brought pursuant to s 329 of the 1998 Act. He sought an assessment of whether the permanent impairment he had suffered was more than 20%.
The applicant has provided a chronology.
The applicant submitted that there is no dispute that the need for surgery on
10 September 2021 resulted from the injury he sustained on 25 July [sic: May] 2017.
The applicant submitted that the surgery had no significant benefit. He referred to his statement dated 17 April 2023.
The applicant submitted that the issue between the parties can be discerned from the following:
·        the MAC;
·        Dr New’s report dated 19 July 2022;
·        his solicitors’ letter dated 27 July 2022;
·        Dr Gothelf’s reports dated 5 January 2023 and 21 February 2023, and
· the section 78 notice.
The applicant submitted that the s 78 notice appropriately did not dispute that there had been a deterioration in his condition that resulted in an increase in the degree of permanent impairment (referring to s 327(3)(a) of the 1998 Act).
The applicant submitted that the expert opinion before the Commission is that, since the MAC on 20 October 2021 [sic, 2020], and the award of the former Commission, there has been a deterioration that has resulted in an increase in the degree of impairment. His current impairment, although more severe than at the time of the MAC, is nonetheless the result of the injury on 25 May 2017.
The issue between the parties, the applicant submitted is then the extent of his impairment.
The insurer disputed the proposition that the applicant is to be regarded as worker with high needs on the grounds that, despite the deterioration, his impairment is to be regarded as higher than 20% WPI. He submitted that s 329 of the 1998 Act provides a mechanism to deal with the dispute.
The applicant submitted on the interaction between s 329 and s 322A of the 1998 Act, asking whether s 329 can work with s 322A.
The applicant submitted that s 322A of the 1998 Act was introduced by the Workers Compensation Legislation Amendment Act 2012. That Act became operational on
27 June 2012.
Section 322A provides, relevantly to the applicant’s case: “Only one assessment may be made of the degree of permanent impairment of an injured worker”.
The applicant submitted that s 322A (4) of the 1998 Act notes that the section does not affect the operation of s 327 or s 352 of the Act. In inserting s 322A, and adverting to ss 327 and 325, the legislature made no provision to restrict the operation of s 329. Section 329 was in place when s 322A was enacted, having been introduced on 1 November 2006.
The applicant referred to the decision of Acting President Roche, as he then was, in O’Callaghan v Energy World Corporation Ltd[2]. Roche AP said at [87]:
“It is difficult to see how the reconsideration power in s 329 can work with s 322A, which appears to be the dominant provision.”
[2] [2016] NSWWCCPD 1 (O’Callaghan).
The applicant submitted that Roche AP did not express a concluded view, describing the above as a “note in passing”. However, Deputy President Snell, in Singh v B & E Poultry Holdings Pty Ltd[3] agreed with his observation.
[3] [2018] NSWWCCPD 52 (Singh) at [57].
The applicant submitted that, importantly, Snell DP observed in Singh at [54] that s 329 is a discretionary power. This protects s 329 to be used to undermine s 322A, in the manner set out in Singh.
The applicant submitted that it is very important to note that s 329(1)(a) of the 1998 Act empowers the President to refer a matter for assessment, specifying by way of limitation that the power is an alternative to an appeal against the (earlier) assessment as provided by
s 327. (Emphasis in original).
The applicant submitted that this met the concern raised in obiter by Brereton J in
Hochbaum v RSM Building Services Pty Ltd.[4] Section 329 of the 1998 Act is not limited to referrals for matters other than permanent impairment, and clearly was intended to include claims for permanent impairment, given the reference in s 329(1)(a) to s 327. The discretion can be used in a way that does not undermine s 322A, given the specific provision in
[4] [2020] NSWCA 113 at [55].
s 322A(4) that the section does not affect the operation of s 327.

The applicant submitted that, clearly, the discretion in s 329 will be exercised in only limited circumstances, but there is a powerful argument for its exercise in the present circumstances where:
· Both parties have evidence that since the MAC and the first COD, there has been a deterioration that resulted in an increase in WPI, establishing the ground in
s 327(3)(a) of the 1998 Act, and
· He did not seek additional compensation, but merely a determination that he met the threshold imposed by s 39 of the 1987 Act.
The applicant submitted that, had there been a dispute as to the existence of a deterioration, or if his application were for additional benefits, the appropriate course would be an appeal, pursuant to s 327 of the 1998 Act, invoking s 327(3)(a) and (b) of the Act. But s 329 provided an express alternative. The absence of these conditions permits the exercise of s 329.
The applicant submitted that the Commission would:
· Set aside the first COD, pursuant to s 57 of the Personal Injury Commission Act 2020 (the 2020 Act).
· Remit the matter, pursuant to s 329(1)(a) of the 1998 Act, to the President, as an alternative to an appeal against an assessment as provided for by s 327.
· Request the President to refer for assessment by a Medical Assessor his WPI resulting from injury to his lumbar spine and right lower extremity, with date of injury 25 May 2017.
In reply to the respondent, the applicant referred to its submission that any revocation of the first COD would depart from the intention of finality in the resolution of medical disputes. He submitted that the legislation makes specific provision for the review of assessment of WPI, even in circumstances where the Commission has issued a COD. The provisions would be rendered nugatory unless the earlier COD were set aside.
The applicant drew attention to her Honour Harrison AsJ’s words at [121] in Sleiman v Gadalla Pty Ltd.[5]
[5] [2021] NSWSC 86 (Sleiman).
The applicant had argued that the circumstances of this case provide a powerful argument for the exercise of discretion in s 329 of the 1998 Act. The remedy he sought was not compensation, but a determination of the category of worker into which he fell.
The applicant submitted that the singular circumstance of this case is that the medical evidence is unanimous as to two critical matters:
(a) that there has been a deterioration in his condition since the earlier COD, and
(b) that the deterioration is the result of the injury for which the previous COD was given.
The applicant submitted that the respondent’s submissions did not deal with his submission that the President’s power in s 329(1)(a) is specifically an alternative to an appeal against the assessment, as provided by s 327. (Emphasis in original).
The applicant submitted that it may well be said that the legislative intention in inserting
s 329, and retaining it after the enactment of s 322A, was to deal with such circumstances as the present, where there is unanimity concerning the issue of a deterioration of a condition as a result of the original injury.
The applicant submitted that the approach taken in BEX v Koskela Pty Limited[6] provided useful guidance. The important concession by Harrison AsJ meant there was no relevant conflict between Sleiman and Gadalla [sic: BEX].
[6] (2023) NSWPIC 174 (BEX).
The applicant submitted that the Commission would make the orders sought in its original submissions.
In his further submissions, lodged following the decisions in Lazio, the applicant submitted that the decisions did not detract from his argument.
The applicant submitted that his reasons could be put into three broad categories.
Firstly, he submitted that the issue between the parties was set out in the s 78 notice, which he had pointed out in his principal submissions.
The applicant submitted that the dispute notice did not suggest he was impeded from asserting that his impairment resulting from injury is 50%. The dispute is simply that this assertion was not justified, and the preferable evidence is that he did not meet the threshold to be considered a “high needs worker”.
The applicant therefore submitted that the Lazio determinations deal with an issue that was not raised in this matter.
Secondly, the applicant submitted that this Application is for an order pursuant to s 329(1)(a). That section was not referred to in either Lazio determination.
The applicant submitted that, if the respondent is permitted to raise s 322A of the 1998 Act, as to which he referred to the above submissions and the relevant principal submissions, then the availability of an order under s 329 in the special circumstances of this case is set out in the principal submissions.
Thirdly, the applicant submitted that the Lazio determinations occurred in circumstances where a worker sought to bring an application in respect of body partswhich had not been the subject of an earlier assessment of WPI resulting from the relevant injury.
Snell DP considered that that application was defeated by s 322, noting the observations of Barrett JA in Galluzzo v Little.[7]
[7] [2013] NSWCA 116 (Galluzzo).
The applicant submitted there is a clear distinction between cases of the type in Lazio and Galluzzo and this case. The inhibition created by s 322(1) was found in those cases to apply to an application by a worker to add the impairment of a body part to the impairment from an earlier body part that had been the subject of an assessment.
That is not the present situation. The applicant does not seek to support his claim for an order under s 329 by adding the impairment from a further body part to those already assessed.
The present assertion is that the fact, accepted by medical evidence of both the applicant and the respondent, that the applicant’s WPI is now greater than when he was previously assessed, provides the basis for the exercise in his favour of the discretion provided in s 329.
The applicant submitted that this was not addressed in Lazio, in which no such application was made. The insertion of s 329 was clearly to provide an avenue for a worker in circumstances such as the present to advance a claim to be regarded as one with high needs.

Respondent

The respondent did not dispute the background contained in the applicant’s submissions. In addition, it noted that the applicant was previously a sworn police officer, but was medically retired, joining NSWPF as an unsworn officer in 2003; the MAC; and the MAP.
The respondent submitted that s 322A (2) and (3) of the 1998 Act provide that only one MAC can be provided, and further assessment is prevented if a MAC has previously been issued.
The respondent submitted that it is not in dispute that the applicant attended a Medical Assessor [sic, AMS] and a MAC was issued on 20 October 2020. Therefore, a further assessment is not permitted, pursuant to s 322A.
The respondent submitted that, while the application of s 327 of the 1998 Act is not affected by s 322A, the applicant is not seeking to appeal the MAC of Dr Mastroianni. (Emphasis in original).
The respondent submitted that s 329 of the 1998 Act provides a discretion to the President, court, or Commission to allow a further medical assessment where one has previously been undertaken. That further assessment is said to prevail over any previous certificate. There is no allowance in s 322A that the operation of s 329 is not affected by that section.
The respondent submitted that in O’Callaghan, Roche AP observed that it was difficult to see how the reconsideration power in s 329 can work with s 322A which appears to be the dominant provision. (Emphasis in original). In Singh, the Deputy President agreed with the observations in O’Callaghan, while clarifying that the power was discretionary.
The respondent referred to the applicant’s submission that the discretionary power should be exercised because both parties have evidence to suggest a deterioration, and he is not seeking additional compensation.
The respondent submitted that, while the medical evidence showed a deterioration, the applicant was not prevented from delaying his claim for lump sum compensation and WPI assessment, given his ongoing employment.
The respondent submitted that it is not completely true that no additional compensation was sought. Any classification of the applicant as a high needs worker will impact the amount of compensation paid to him, and on this basis arguably goes against the intentions of the scheme established from 2012 onwards. (Emphasis in original).
The respondent referred to Sleiman. It submitted that Harrison AsJ considered that the relevant sections of the 1998 Act, including ss 294, 327 and 322A provided an intention for finality in the resolution of medical disputes. (Emphasis in original).
The respondent submitted that in BEX there was no opposition from the respondent to the application to revoke the COD. The respondent in this matter opposed the revocation of the COD dated 12 April 2021. The case of Sleiman, as a decision of the Supreme Court of NSW, should be preferred.
The respondent sought an award in its favour, with the applicant prevented from having a further assessment by a Medical Assessor.
In its further submissions, lodged following the decision in Lazio, the respondent submitted that Lazio is relevant to this matter.
Snell DP dealt with s 322A of the 1998 Act and referred to the decision of President Keating in Merchant v Shoalhaven City Council.[8] He agreed with the approach adopted by Keating P. The worker was precluded by s 322A from obtaining a further referral to a Medical Assessor.
[8] [2015] NSWWCCPD 13 (Merchant).
The respondent referred to the applicant’s submission that Lazio is distinguishable, as s 329 was not in issue, and further body parts were introduced in that matter. However, it submitted that the worker in Lazio, as in this case, was not claiming further permanent impairment compensation; and had submitted that the prior referral (for one body part only) did not prevent a referral to determine whether s 39 of the 1987 Act applied.
The respondent submitted that while the applicant is not seeking the introduction of a new body part, the discussion in Merchant emphasises that s 322A expressly applies to any further assessment regarding the degree of permanent impairment resulting from an injury. (Emphasis in original).
The respondent submitted that Lazio involved a request for a further assessment for the purposes of satisfying the s 39 threshold, and not for further lump sum compensation. The introduction of an additional body part did not detract from this and was not the reason for the ultimate findings in the matter.
The respondent submitted that, while the applicant was seeking an order pursuant to s 329, which was not discussed in detail in Lazio, there is other relevant case law, discussed in its original submissions, dealing with s 322A as the dominant provision.
The respondent noted that the applicant had raised the issue that the s 78 notice disputed only that the applicant was a worker with high needs. The respondent submitted that, at the time the notice was issued, there were no proceedings on foot. There could be no discussion of s 329 of the 1998 Act until proceedings were commenced and reconsideration sought. (Emphasis in original).
The respondent submitted that, furthermore, any application under s 329 is affected by
s 322A and potentially s 327 of the 1998 Act. The Commission is obliged to consider these sections before allowing revocation of the first COD or re-examination by a Medical Assessor.
The respondent finally submitted that there should be an award in its favour, with the applicant prevented from having a further assessment conducted by a Medical Assessor.

SUMMARY

The applicant seeks to have the decision of the Commission in the previous proceedings reconsidered; the first COD set aside; and the matter remitted to the President with a request for a further referral to a Medical Assessor. He is not seeking to appeal the MAC issued by Dr Mastroianni, which has already been the subject of an unsuccessful appeal.
Section 57 of the 2020 Act provides:

“57 Reconsideration of decisions of Commission

(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.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may--
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may--
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where--
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.”

Section 322A of the 1998 Act provides:

“322A One assessment only of degree of permanent impairment

(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).”

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) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(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).
Note : Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed 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.
(8) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.
Note : Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.”

Section 329 of the 1998 Act 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.”

There would be no utility in setting aside the first COD if, as the respondent submitted, the applicant is prevented by the operation of s 322A from having another assessment of WPI.
It is therefore preferable to firstly consider the operation of ss 322A and 329 of the 1998 Act.
The applicant relied on the decision in BEX, and submitted there was no relevant conflict between it and the decision in Sleiman. The respondent submitted that Sleiman should be preferred, and that Harrison AsJ considered that the relevant sections of the 1998 Act, including sections 294, 327 and 322A, provided an intention for finality in the resolution of medical disputes.
In Sleiman, Harrison AsJ said [at 115]:
“Section 294 of the 1998 Act unequivocally requires the Commission to issue a certificate of determination as soon as practicable after the determination has been made. Although the provision made for an appeals process s 327 is generally remedial in character, s 327(7) clearly states that there is no appeal from a medical assessment after such a certificate has been issued. In my view, these provisions evince an intention to provide for finality in the resolution of medical disputes. This intention is reflected elsewhere in the legislation, such as in 322A of the 1998 Act, which limits an injured worker to one assessment of his or her degree of permanent impairment.”

However, Harrison AsJ also said [at 120 – 121]:
“For the reasons I have given in relation to the previous grounds of review, the plaintiff in these proceedings could not have availed himself of the application for further assessment process under s 329, because the decision of the Appeal Panel was not a ‘medical assessment’. However, this avenue provides a pathway by which an applicant may seek a reassessment of his or her medical assessment on the basis of a deterioration of his or her condition even after the certificate of determination has been issued.
Finally, as set out earlier, there is provision in the legislation for the Commission to reconsider decisions which are otherwise final and not subject to appeal. In the event that a person might seek to have such a decision reviewed on the basis that his or her condition has deteriorated, s 350(3) provides a ‘broad’ discretion by which the Commission may reconsider any matter it has dealt with and rescind, alter or amend it: see Martinovic[9] at [91].”
[9] Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532.
Section 350 (3) of the 1998 Act, to which Harrison AsJ referred, previously contained the “reconsideration” power that now appears in s 57 of the 2020 Act.
The decision of the Court of Appeal in the subsequent appeal in Sleiman did not dismiss or alter those observations made by Harrison AsJ.
Member Isaksen said in BEX (at [21]):
“The effect of ss 322A (3) and 327 (7) of the 1998 Act is that the applicant is barred from seeking an appeal of the medical assessment certificate dated 7 February 2020 or a further assessment as provided for by s 329 of the 1998 Act unless the Certificate of Determination dated 15 June 2020 is revoked or set aside.” (Emphasis added).
Snell DP considered the operation of s 322A of the 1998 Act in Lazio. He said (at [164]):
“In my respectful opinion the construction by Keating P in Merchant, dealing with s 322A of the 1998 Act, is correct. The emphasis placed by his Honour on the word ‘any’ in s 322A(2) highlights the emphatic language employed by the legislature in that sub-section. The words of the section do not suggest that there are exceptions to this prohibition. To read s 322A, in the way the worker submits, would involve a reading that conflicts with the plain, unlimited words of sub-s (1). His Honour’s reading of s 322A involves internal consistency within the section. I accept the employer’s submissions that the words in parentheses should be read as providing examples. They do not purport to be exhaustive. There are certain statutory exceptions to the prohibition in s 322A, for example medical appeals (ss 327 and 328 of the 1998 Act), referrals under s 329 of the 1998 Act, and Pt 2A of the 2016 Regulation. It is not argued that these have application in the current matter.” (Emphasis added).
Section 322A(4) of the 1998 Act provides that the section does not affect the operation of
s 327 of the Act.
Section 329(1)(a) of the 1998 Act provides that the President may refer a matter again for assessment as an alternative to an appeal against the assessment.
Snell DP clearly considered that a referral pursuant to s 329 of the 1998 Act was a statutory exception to the operation of s 322A. It would be anomalous if an appeal pursuant to s 327 of the Act was exempt, but a referral pursuant to s 329 was not.
I do not accept that the applicant is precluded by the operation of s 322A of the 1998 Act from a further assessment being made of his permanent impairment.
It is then necessary to consider whether I should exercise the power provided for in s 57(1) of the 2020 Act to reconsider the Commission’s previous decision and set aside the first COD.
The Commission’s power to reconsider its previous decisions is a broad one. It was discussed by Acting Deputy President Roche, as he then was, in Samuel v Sebel Furniture Limited.[10] Roche ADP was considering s 350 of the 1998 Act, which, as I have said, was in substantially similar terms to s 57 of the 2020 Act.
[10] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).
Roche ADP referred to the following matters:
(a)    the section gives the Commission a wide discretion to reconsider its previous decisions (Hardaker v Wright & Bruce Pty Ltd);[11]
(b)    while the word “decision” is not defined in s 350, it is defined for the purposes of s 352 to include “an award, order, determination, ruling and direction”. In Roche ADP’s view, “decision” in s 350(3) included, but was not necessarily limited to, any award, order or determination of the Commission;
(c)    while 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 v Herfords Pty Ltd);[12]
(d)    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 v Hilliger);[13]
(e)    reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained during the first proceedings 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 v J Robins & Sons Pty Ltd);[14]
(f)    given the broad power of “review” in s 352 (which was not universally available in the Compensation Court of New South Wales) the reconsideration provision in s 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
(g)    depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [15]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;
(h)    a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd)[16], and
(i)    the Commission has a duty to do justice between the parties according to the substantial merits of the case (Hilliger and s 354(3) of the 1998 Act).
[11] (1962) 62 SR (NSW) 244.
[12] [1975] 1 NSWLR 413.
[13] (1952) 52 SR (NSW) 105 (Hilliger).
[14] [1993] NSWCC 36; (1993) 9 NSWCCR 642.
[15] [1981] HCA 45; (1981) 147 CLR 589.
[16] [1953] WCR 29.
Section 352 of the 1998 Act no longer provides for a power of “review”, but rather for an appeal against a decision, limited to a determination of whether the decision was affected by error of fact, law or discretion, and the correction of any such error.
Section 354 of the 1998 Act has been repealed, but s 43(3) of the 2020 Act provides that the Commission is to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms.
Samuel was referred to with approval in Railcorp NSW v Registrar of the WCC of NSW,[17] in which Harrison AsJ said:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
[17] [2013] NSWSC 231.
In my view, the applicant satisfies the fifth principle referred to by Roche ADP in Samuel. He underwent revision laminotomy and neurolysis at L4/5 and L5/S1 on 10 September 2021. This occurred after the MAC was issued on 20 October 2020 and after it was confirmed by the MAP on 2 March 2021.
The subsequent assessment by Dr New that the applicant has 50% WPI is new or fresh evidence which obviously could not have been obtained with reasonable diligence prior to the examination by Dr Mastroianni on 15 October 2020.
O’Meally CCJ said in Galea v Ralph Symonds Pty Ltd[18]:
“...the applicant must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing....and that if believed would be at least a determining factor in the outcome of the case.”
[18] [1989] NSWCC 4; (1989) 5 NSWCCR 192.
There is evidence from Dr New of a significant material change in the applicant’s condition as a result of him undergoing further spinal surgery. In my view, this warrants the exercise of the “wide ranging” discretion. I have balanced the policy requirements of finality of litigation with the obligation to rectify a “clear cut injustice”. I have determined that the balance lies in favour of the applicant, and the first COD should be rescinded.
I also believe it is in keeping with the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, that the first COD is rescinded.
The applicant did not seek that I refer the matter for further assessment pursuant to s 329(1)(b) of the 1998 Act, but rather that I remit the matter to the President and request that he refer the matter to a Medical Assessor as an alternative to an appeal.
In those circumstances, it is appropriate that I remit the matter to the President, rather than exercise my power pursuant to s 329(1)(b) of the 1998 Act.
I have determined that the first COD should be rescinded; and the matter should be remitted to the President to determine whether this matter can be referred for a further assessment of permanent impairment as an alternative to an appeal as provided for by s 329 (1) of the 1998 Act.
The orders are set out in the COD.

[2023] NSWPIC 492

20 September 2023